TaxTMI 
TaxTMI 
2009 (3) TMI 72
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....ure of Rs.20,00,000/- while imposing penalty and applying rate of 10% per annum while directing levy of interest. In support of the submissions made reliance was placed on an unreported judgment of this Court rendered on 25/9/2008 in case of NISSAN COPPER LTD, UNIT NO.1 & 2 Vs. UNION OF INDIA THORUGH SECRETARY & 1, in Special Civil Application No. 4896 of 2008 and cognate matters, to submit that when no reasons are assigned, the order of Settlement Commission cannot be upheld. It was submitted that the impugned order should be set aside and restored to the file of Settlement Commission for deciding the aforesaid issues afresh. Learned counsel also placed reliance on judgment of Bombay High Court in the case of WESTCOAST INGOTS PVT. LTD. Vs. UNION OF INDIA, 2008 (232) E.L.T. 21 (Bom.), to submit that in a case where it is shown that there was non application of mind, the Court can always interfere. The next judgment was in case of COMPETENT ENGINEERS Vs. COMMISSIONER OF C.EX., JALANDHAR, 2007 (220) E.L.T. 36 (P&H), to submit that non assigning of reasons for rejection of a claim would give rise to a situation where the Court can exercise discretionary jurisdiction under Article 226 ....
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....uty under the Act which is settled at a sum of Rs.1,64,02,180/-. The challenge is only to the part of the order whereunder a direction is given to charge interest at the rate of 10% per annum on the duty payable on all goods removed clandestinely from the date of removal up to the date of payment of duty and levy of penalty of Rs.20,00,000/-. On facts, it is not possible to accept the contention raised on behalf of the petitioners that no reasons are assigned. It is well settled that the order is to be read as a whole and a particular part of the order cannot be read and grievance made while ignoring the remaining part of the very same order. For better appreciation of the contentions relevant part of the order of Settlement Commission as is material for the present matter be reproduced. "3. The final hearing of the case was held on 31.07.2007, when Shri Vipin Kumar Jain, Advocate, assisted by S/Shri Vishal Agarwal, C.A., and Sakat Patwari, C.A., represented the applicant and the co-applicants. The ld. Advocate submitted that the applicant had deposited the entire duty liability of Rs.1,64,02,118/- However, due to severe financial constraints Rs.3,00,000/- was deposited after....
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....ithin 30 days from the same is conveyed to him by the jurisdictional Commissioner after due calculation. Immunity from interest over and above 10% is granted. Penalty: A penalty of Rs.20,00,000/- (Rupees Twenty Lakhs only) is imposed on the applicant and immunity is granted to him from penalty beyond above amount. Immunity from penalty is granted to the co-applicants. Prosecution : Immunity from prosecution is granted to the applicant and all co-applicants. The above immunities are granted under Section 32 K(1) of the Act. Attention of the applicant is also drawn to the provisions of sub Section (2) and (3) ibid. When one reads the entire order, it becomes apparent that Commission was conscious of the financial constraints faced by the petitioner as pleaded in paragraph no.3 and, therefore, the delay in making payment of duty as recored in paragraph no.5 of the impugned order stands condoned. Therefore, the petitioner is not justified in making a grievance that the financial position of the petitioner has not been considered by the Settlement Commission. In so far as levy of interest is concerned, Settlement Commission has fixed the rate at 10% per annum in relation to ....
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.... malice which constitute a different category by itself. The Court has further held that the scope of judicial review in a petition under Article 226 of the Constitution is only in relation to the decision making process and not the decision itself nor the validity of the order. The relevant part of he Apex Court judgment reads as under:- "May be, there is also some force in what Dr. Gauri Shankar says viz., that the order of commission is in the nature of a package deal and that it may not be possible, ordinarily speaking, to dissect its order and that the asessee should not be permitted to accept what is favourable to him and reject what is not. According to learned counsel, the Commission is not even required or obligated to pass a reasons order. Be that as it may, the fact remains that it is open to the Commission to accept an amount of tax by way of settlement and to prescribe the manner in which the said amount shall be paid. It may condone the defaults and lapses on the part of the assessee and may waive interest, penalties or prosecution, where it thinks appropriate. Indeed, it would be difficult to predicate the reasons and considerations which induce the commission to ....
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.... was not necessary to go into correctness of interpretation placed upon the trust deed by the Settlement Commission and it was enough if the Court confines itself to the question whether order of Commission was contrary to the provisions of the Act. Only for the purpose of completeness the Court then proceeded to examine whether the order of Commission was vitiated by any such wrong interpretation. From the findings recorded in paragraph no.17 of the said judgment of the Apex Court, it is not possible to state that every order of Settlement Commission has to be a reasoned order, otherwise the same would stand invalidated in law. In this context, the unreported judgment of this Court in case of Nissan Copper Ltd Unit No.1 & 2 (supra) on which a great deal of emphasis was laid may be considered. As recorded in paragraph no.9 of the judgment, the controversy before the Court was limited to the group of petitions wherein, in one set of orders Settlement Commission had assigned reasons for waiver of interest and/or penalty, while in another set no reasons were assigned. It is in the aforesaid context that the Division Bench of this Court has held in paragraph no.13 as under :- "13. T....