TaxTMI 
TaxTMI 
2016 (4) TMI 932
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....KB) dated 23rd September, 2011, passed by the Customs and Excise Settlement Commissioner, Additional Bench, Kolkata, is set aside to the extent it purports to levy penalty on the petitioners. The concerned respondents shall forthwith, and in any case within two months from the date of receipt of a certified copy of this order, refund the penalty amount paid by and/or realized from the respective writ petitioners." (page 781 of the stay application). In this appeal the appellant has challenged the said judgment on principally on two grounds, - that this High Court had no jurisdiction to entertain the writ petition and the writ petition was without merit. Mr. R. Bharadwaj learned advocate for the appellant submitted that as the office of the writ petitioner is situated in Orissa and as a major part of the cause of action arose outside the jurisdiction of the Calcutta High Court, the writ petition is not maintainable. Merely because the Additional Bench of the Settlement Commission (for short 'the Commission') had passed the order in Kolkata does not make the writ petitioner amenable to the writ jurisdiction of this High Court. On merits, relying on the grounds of appeal, it was s....
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....of replying to the said notice the respondents had opted for settlement making a true and full disclosure, and as order was passed after giving hearing and as the respondents had admitted that an order by the Commission is a package and as having been granted immunity from prosecution respondents cannot challenge the order passed by Commission, the learned Single Judge had erred in passing the judgment. Mr. Bharadawaj had referred to the following judgments in support of his submission which are as under:- (1) Sun Pharmaceutical Industries Limited v. The Union of India & Others: 2007-(218)-ELT-0495-BOM, (2) Brindavan Beverages Pvt. Ltd. v. Commissioner of C. Ex., Meerut: 2009-(237)-ELT-0658-DEL and (3) the unreported judgment delivered on 6th July, 2015 in MAT 1856 of 2014 (Venky Hi-Tech Ispat Ltd. v. Customs and Central Excise Settlement Commission). Mr. J.P. Khaitan, learned senior advocate, on the point of maintainability submitted that since the Additional Bench of the Commission, exercising jurisdiction over Orissa, having its principal seat at Kolkata, heard the matter and had passed the impugned judgment and as part of the cause of action had arisen within the terr....
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....oner of C. Ex., Pune v. Coca-Cola India Pvt. Ltd.: 2007 (213) ELT 490 (SC); 11) Viva Herba Pvt. Ltd. v. Union of India: 2010(260) ELT 168 (Bom.); 12) Swasthik Tobacco Factory v. Cus. & C. Ex. Settlement Commission: 2012 (281) ELT 674 (Mad.) and 13) Nirlon Ltd. v. Commissioner of Central Excise, Mumbai: 2015 (320) ELT 22 (SC). The issues to be considered are i) Whether the writ petition is maintainable, ii) Whether the order of penalty passed by the Commission is severable and iii) Whether in the facts of the case the learned Single Judge was justified in directing refund of penalty imposed. So far as the first issue is concerned, there is no dispute that the Commissioner Central Excise, Customs and Services Tax, Bhubaneswar had issued the demand-cum-show cause notice. There is also no dispute that respondents/writ petitioner nos. 1 to 4 have their offices situated in Orissa which are outside the jurisdiction of the Calcutta High Court. However, the Additional Bench of the Commission at Kolkata, under the statutory rules, having jurisdiction over the entire eastern zone, which includes the State of Orissa, after hearing, had passed the order. The appellant had participat....
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....mount, the same is ordered to be appropriated by the Commissioner within 30 days from the date of receipt of this order. Penalty- Taking into account the facts and circumstances of the case, the Bench grants immunity to the applicant (M/s. Vedanta Aluminium Limited) from penalty as is in excess of ­4,00,00,00 (Rupees four crore only) and to the coapplicants Shri Rajesh Mohata from penalty as is in excess of ­5,00,000 (Rupees five lakh only), Shri TPK Patro from penalty as is in excess of ­5,00,000 (Rupees five lakh only), Shri P.S Reddy from penalty as is in excess ­5,00,000 (Rupees five lakh only), and Shri Purushottam Kumar Choudhury) from penalty as is in excess of V5,00,000 (rupees five lakh only) under the provisions invoked in the SCN. The amounts of penalty should be paid within 15 days from the date of receipt of this order under intimation to the Commissioner and the same should be appropriated by the Commissioner within 15 days thereafter. Prosecution - The Bench grants immunity to all the applicants from prosecution under the Act and Rules made hereunder in so far as this case is concerned." The question is whether the learned Single Judge was jus....
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....ackage, an order passed by the Commission, should be read as a whole. It is to be noted that the learned Judge even while holding penalty being segregable and unsustainable held "It is true that ordinarily the settlement comes as a package and composite tax statement is either to be accepted or rejected. The settlement tax cannot be accepted only in part." (page 780 of the stay application). In view of the discussion as aforesaid, in a case where the applicant is dissatisfied with the order, either prayer can be for adjudication by the Central Excise Officer or for remand before the Commission, a suggestion, which put during hearing, did not find favour with the respondents. This apart there is another aspect of the matter. We find that after order was passed by the Settlement Commission, as evident from the letters dated 17th October, 2011, the respondents had deposited the penalty, without prejudice to their rights available under the law. In our view since the respondents had filed applications for settlement admitting the allegations in the notice and having accepted immunity from prosecution and as the order is inseparable, such reservation of rights is unacceptable. It is ag....