Judgment :- 1. All the four Writ Petitions are filed praying to issue a Writ of Certiorari, calling for the records comprised in the impugned final order No.55/2007-CE dated 6.9.2007 insofar as imposition of personal penalty on the respective petitioners on the file of the first respondent and quash the same. 2. The relief sought for in all the four writ petitions is one and the same. Hence, by consent of both parties all the four writ petitions are taken up together and disposed of by this common order. 3. Four writ petitions have been filed, one by the company and the other three by the Directors and President of the Company challenging the order of the Customs & Central Excise Settlement Commission, the first respondent. 4. The brief facts in all the four cases are as follows:- Petitioner company is engaged in manufacture of Aluminium Conductor Steel of various types falling under Chapter Heading 7406 of Central Excise Tariff Act, 1985. Petitioner company is 100 per cent Export Oriented Unit (EOU in short). The Directorate General of Central Excise Intelligence on reasonable belief and information made a search of the petitioner company on 14.10.2003 at the factory and corporate office premises at Pondicherry and Chennai. Documents were seized and mahazar was drawn. Statements were recorded from Senior President, Special Director, the promoters of the company and other personnel like President, Head – Corporate Planning, Excise in-charge, said to be involved in the affairs of the company. After perusal of the documents seized and on the basis of the investigation and the statements recorded, the department was of the view that the petitioner company, a 100 per cent EOU did not make any export and has procured raw materials without payment of duty availing the concession extended to 100 per cent EOU. The duty free raw materials were used for manufacture of conductors, which were cleared to Domestic Tariff Area (DTA in short) (i.e.) to State Electricity Board concerns, like TNEB, HVPNL, RRVPNL and APTRANSCO. No excise duty was paid on any of their clearance to DTA, whereas excise duty was collected from the customers. All these activities were conducted clandestinely, violating the provisions of the Central Excise and the Regulation in respect of 100 per cent EOU, within the control of the Madras Export Processing Zone (MEPZ in short). 5. No excise duty was paid on any of their clearance to DTA, whereas excise duty was collected from the customers. All these activities were conducted clandestinely, violating the provisions of the Central Excise and the Regulation in respect of 100 per cent EOU, within the control of the Madras Export Processing Zone (MEPZ in short). 5. It is the further allegation of the department that the petitioner company did not obtain the permission for manufacture and removal of goods to DTA from MEPZ, which can be obtained only on fulfillment of the export obligations. 6. In view of the above nature of charge, a show cause notice dated 30.9.2004 was issued demanding duty and for other action as per law. The summary of the charge and the payment made by petitioners is as follows:- "14.0 Voluntary payment: 14.1 MPTEL have voluntarily paid an amount of Rs.50,00,000/- (Rs.Fifty Lakh only) under T.R.Challans, as shown in Annexure-E to SCN and debited the same towards their duty liability on their clearances made in DTA to electricity Board/Concerns, without payment of Central Excise duty. The summary of the charge and the payment made by petitioners is as follows:- "14.0 Voluntary payment: 14.1 MPTEL have voluntarily paid an amount of Rs.50,00,000/- (Rs.Fifty Lakh only) under T.R.Challans, as shown in Annexure-E to SCN and debited the same towards their duty liability on their clearances made in DTA to electricity Board/Concerns, without payment of Central Excise duty. 15.0 SUMMARY: 15.1 From the investigations conducted against MPTEL, it therefore appears that: * MPTEL is an 100% EOU having their factory premises at No.84 Akashpattu Village, Vanur Taluk, Villupuram District and were engaged in the manufacture of ACSR conductors etc.; * MPTEL have procured raw materials such as aluminium rods/ingots, steel wires etc., required for the manufacture of ACSR conductors, without payment of excise duty under C.T.3 certificates availing the concession extended to 100% EOUs; * MPTEL have not made any exports of manufactured goods from their factory, but have used the duty free raw materials for the manufacture of ACSR conductors, which were cleared in DTA, i.e., to various state electricity Board/Concerns; * MPTEL have cleared the manufactured goods under Commercial invoices, by charging excise duty and have collected excise duty, which was not remitted to Government exchequer; * The IONs and other correspondence between the personnel of MPTEL have clearly unearthed the modus of illicit manufacture and removal of goods; * The procurement of raw materials under C.T.3 certificates without payment of duty, manufacture of goods at the factory premises of MPTEL were evident from the documents seized from Corporate Office and factory premises of MPTEL; * The substantial consumption of electricity at the factory premises of MPTEL appears to confirm the production of goods carried out by MPTEL; * All the customers of MPTEL have furnished the documents relating to their entire transactions with MPTEL, which appears to confirm the clandestine manufacture and removal of goods by MPTEL; * The Senior President, Special Director, President, Head-Corporate Planning, Senior Manager-International Division (in-charge of excise) of MPTEL have in their respective statements admitted the entire modus, i.e., procurement of duty free raw materials, usage of the same in the manufacture of goods that were cleared in DTA without payment of duty, collection of excise duty from customers and non-payment of the same to Government exchequer, making no exports, application to de-bond the EOU status of MPTEL to regularize the illicit clearances etc.; * MPTEL are liable to pay the appropriate Central Excise duties on the clandestine manufacture and clearances of ACSR conductors effected to TNEB, HVPNL, RRVPNL & APTRANSCO; * MPTEL have voluntarily paid an amount of Rs.50 lakhs towards the duty liability on their past clearances; 16.0 In view of the foregoing details of their acts of omission and commission, MPTEL appear to have contravened the following provisions:- i. Rules 9(1) and 100D of erstwhile Central Excise Rules, 1944, Rule 17(1) of Central Excise (No.2) Rules, 2001 & Rule 17(1) of Central Excise Rules, 2002 in as much as they removed ACSR conductors manufactured by them, without payment of the appropriate duties payable thereon; ii. Rule 100B of erstwhile Central Excise Rules, 1944, Rule 17(2) of Central Excise (No.2) Rules, 2001 & Rule 17(2) of Central Excise Rules, 2002 in as much as they failed to maintain proper account in respect of the finished goods removed without payment of duty; iii. Rule 100E of erstwhile Central Excise Rules, 1944, Rule 17(1) of Central Excise (No.2) Rules, 2001 & Rule 17(1) of Central Excise Rules, 2002 in as much as they removed the goods without the cover of proper Central Excise invoice, as required; iv. Rule 100F of erstwhile Central Excise Rules, 1944, Rule 17(3) of Central Excise (No.2) Rules, 2001 & Rule 17(3) of Central Excise Rules, 2002 in as much as they failed to furnish the details of their transactions involving clandestine removals in the periodical returns filed by them; 17.0 By their above-detailed acts and the consequential contravention of the Rules ibid, MPTEL appear to have evaded payment of payable Central Excise duties on the ACSR conductors manufactured and cleared by them in DTA to various state electricity Board/Concerns during the period from 1999-2000 (from March 2000) to 2001-02 (upto March 2002) in the manner detailed above." 7. Consequently, the Department in its show cause notice alleged evasion of Excise Duty as hereunder and also proposed the levy of penalty:- "20.0. In view of the foregoing it appears that MPTEL are liable to: i. pay Central Excise duty totally amounting to Rs.2,76,46,994/- (as detailed in Annexure-D) on the manufactured ACSR conductors removed to TNEB, HVPNL, RRVPNL & APTRANSCO during the period from 1999-2000 (from March 2000) to 2001-02 (upto March 2002) without payment of duty due thereon, under erstwhile Rule 9(2) of the Central Excise Rules, 1944 and under Rule 17(1) of Central Excise (No.2) Rules, 2001 & Central Excise Rules, 2002 read with proviso to Section 11A(1) of the Central Excise Act, 1944. ii. Pay an amount of Rs.89,58,603.76 that was collected from the customers towards Central Excise duty under the Commercial invoices raised by them for removal of conductors and not paid to Government exchequer, in terms of Section 11D of Central Excise Act, 1944. iii. penalty equivalent to the amount of duty mentioned at (i) above under Section 11AC of the Central Excise Act, 1944. iv. iii. penalty equivalent to the amount of duty mentioned at (i) above under Section 11AC of the Central Excise Act, 1944. iv. pay interest at the appropriate applicable rates on the amount of duty demanded at (i) above in terms of Section 11AB of Central Excise Act, 1944. v. penalties under Rules 209 of the erstwhile Central Excise Rules 1944 and under Rule 25 & 27 of Central Excise (No.2) Rules, 2001 & Central Excise Rules, 2002 for the contraventions cited supra." 8. Insofar as individuals are concerned, the imputation in the show cause notice at paras 21 and 22 is as follows:- "21.0 The documents, evidence, details and depositions narrated in the foregoing paragraphs by themselves reveal the role of Dr.B.a.Rajagopalan as the main person who was actively and personally involved in the various aspects of MPTEL's activities, which were in contravention of the statutory provisions. From the seized documents it was noticed that as the Senior President of MPTEL, Dr.Rajagopalan has been periodically appraised by his sub-ordinate officers on the issue relating to illicit manufacture and clearance of ACSR conductors. It is seen that on some of the IONs addressed to him involving Central Excise matters, he has made his comments/approvals etc., which were identified by him in his depositions also. Further, the seizure of a file from his residence containing inter-alia duty quantification chart, clearly mentioning the removals made to four electricity Board/Concerns without payment of duty and workings of excise duty for those clearances itself appears to prove his involvement in the unjust affairs of MPTEL. Therefore, Dr.B.a.Rajagopalan, as the Senior President of MPTEL by his individual and co-ordinated acts, thus appear to be liable to penalty under Rule 209A of the erstwhile Central Excise Rules, 1944 and under Rule 26 of Central Excise (No.2) Rules, 2001 & Central Excise Rules, 2002. 22.0 Similarly, Shri B.Muralidhar, Special Director of MPTEL, Shri A.S.Dumenil, President, Ms.Subhadra Kunduri, Head-Corporate Planning of MPTEL have concerned themselves in organizing the manufacture and clearance of ACSR conductors without payment of duty by MPTEL. The IONs issued by Shri Dumenil detailing the misdeeds committed by MPTEL in clandestine removal of MPTEL and Ms.Subhadra signing the packing slips for goods consigned to APTRANSCO have all appears to indicate their involvement in the affairs of MPTEL. The IONs issued by Shri Dumenil detailing the misdeeds committed by MPTEL in clandestine removal of MPTEL and Ms.Subhadra signing the packing slips for goods consigned to APTRANSCO have all appears to indicate their involvement in the affairs of MPTEL. It therefore appears that Shri B.Muralidhar, Sri Dumenil and Ms.Subhadra have dealt with excisable goods which they knew and had reason to believe that they were liable for confiscation and thus have rendered themselves liable for penalty under Rule 209A of the erstwhile Central Excise Rules, 1944, Rule 26 of the Central Excise (No.2) Rules, 2001 read with Section 38A of the Central Excise Act, 1944 and Rule 26 of the Central Excise Rules, 2002." 9. The petitioner company and the individuals were called upon to show cause as to why duty and penalty should not be levied as stated in para 23 which reads as follows:- "23.0 In view of the foregoing, M/s.Marshal Power & Telecom (India) Limited, No.84 Akashpattu Village, Vannur Taluk, Villupuram Dist., PIN-605 101 are hereby required to show cause to the Commissioner of Central Excise, Goubert Avenue, Beach Road, Pondicherry-605 001 ("the adjudicating authority") within 30(thirty) days from the date of receipt of this notice as to why: i. the total amount of Rs.2,76,46,994/- (Rupees Two Crore Seventy Six Lakhs Forty Six Thousand Nine Hundred And Ninety Four only) (BCD – Rs.1,39,83,088.07, SAD – 31,572/-, Surcharge – Rs.46,73,730/-, CVD – Rs.89,58,603.76) (as detailed in Annexure-D) should not be demanded from them towards the Central Excise duties payable by them, as detailed above in terms of the proviso to Section 11A(1) of the Central Excise Act, 1944; ii. an amount of Rs.89,58,603.76 (Rupees Eighty Nine Lakhs Fifty Eight Thousand Six Hundred Three and Seventy Six Paise only) should not be recovered from them in terms of Section 11 D of Central Excise Act, 1944 in as much as the said amount representing excise duty was collected from the customers for the goods removed in DTA to various electricity Board/Concerns, under commercial invoices and not paid to Government exchequer; iii. a sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) paid by MPTEL vide TR-6 challans listed at Annexure-E to this SCN should not be appropriated against demands made above; iv. a sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) paid by MPTEL vide TR-6 challans listed at Annexure-E to this SCN should not be appropriated against demands made above; iv. Penalty equivalent to the total amount of duty mentioned (i) above should not be imposed on them under Section 11AC of Central Excise Act, 1944; v. Interest at the appropriate applicable rates on the amount of duty mentioned at (i) above should not be paid by them under Section 11AB of the Central Excise Act, 1944; vi. Penalties should not be imposed on them under Rule 209 of erstwhile Central Excise Rules, 1944 and under Rule 25 & 27 of Central Excise (No.2) Rules, 2001 & Central Excise Rules, 2002;" 10. Insofar as the penalty against the individual person is concerned, para 24 of the show cause notice reads as follows:- "24.0 Dr.B.a.Rajagopalan, Senior President, Shri B.Muralidhar, Special Director, Shri A.S.Dumenil, President & Ms.Subhadra Kunduri, Head-Corporate Planning of MPTEL are hereby required to show cause to the Commissioner of Central Excise, O/o the Commissioner of Central Excise, Goubert Avenue, Beach Road, Pondicherry-605 001 ("the adjudicating authority") within 30 (thirty) days from the date of receipt of this notice as to why penalty should not be imposed on him under Rule 209A of erstwhile Central Excise Rules, 1944 and Rule 26 of Central Excise (No.2) Rules, 2001 & Central Excise Rules, 2002 for contravening the provisions of Central Excise Act, 1944 and Rules thereunder as detailed in foregoing paras." 11. The case was adjudicated by the Commissioner of Central Excise and by order dated 28.11.2005 in (C.No.V/Ch.74/15/52/2004-Cx.Adj.) Order-in-Original No.18/2005, the Commissioner came to conclusion that the petitioner company has manufactured ACSR conductors evade payment of Central Excise Duty. The clearance was made under commercial invoices and not under invoices prescribed for EOU. The clearance has not been acknowledged in the statutory accounts and the petitioners have failed to furnish the same to the Central Excise Department in the prescribed form. The petitioners also collected the excise duty under the commercial invoice and failed to deposit to the revenue account. 12. The petitioner was engaged in manufacturing and clandestine removal of excisable goods without the permission of the competent authority, viz., the Development Commissioner of MEPZ of the Central Excise Department. As the result of the finding as above, the Commissioner confirmed the demand of the duty in terms of the show-cause notice. 12. The petitioner was engaged in manufacturing and clandestine removal of excisable goods without the permission of the competent authority, viz., the Development Commissioner of MEPZ of the Central Excise Department. As the result of the finding as above, the Commissioner confirmed the demand of the duty in terms of the show-cause notice. The Commissioner in paras 25 and 26 dealt with the manner in which the manufacture and clearance of the goods were done in a clandestine manner contravening the provisions of the Central Excise Act, resulting in the Commissioner passing an order in paras 25, 26 and 27 which reads as follows:- "25. As the activities relating to manufacture and clearance of the ACSR conductors have been suppressed from the department with an intent to evade payment of duty, the proviso under Sec.11A(1) of the Act has been rightly invoked in this case. As these allegations stand proved MPTEL is liable for penalty under Sec.11AC of the Act. As the contravention of various provisions of the Act and the rules made thereunder with an intent to evade payment of duty is proved, MPTEL is also liable for penalty under Rule 209 of the Central Excise Rules, 1944 and Rule 25 & Rule 27 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. 26. The notice has brought out the roles of Dr.B.a.Rajagopalan, as the main person who was actively and personally involved in the various aspects of MPTEL's activities, which were in contravention of the statutory provisions. The seized documents reveal the fact of the above allegation and depositions of the personnel of MPTEL corroborate the same and as promoter of MPTEL and as its Senior President, he had approved the unaccounted manufacture and clandestine removal as is evident especially from the statement of Shri Dumenil, President of MPTEL given on 14.10.2003 apart from the statements of others and other seized documents, especially those from his house. Similarly, it has also been established that Shri.B.Muralidhar, Shri Adelwert S. Dumenil and have concerned themselves in organizing the manufacture and clearance of ACSR conductors without payment of duty by MPTEL knowingly as they were aware of the unaccounted and clandestine removal of the goods as evidenced by the seized documents and statements. Similarly, it has also been established that Shri.B.Muralidhar, Shri Adelwert S. Dumenil and have concerned themselves in organizing the manufacture and clearance of ACSR conductors without payment of duty by MPTEL knowingly as they were aware of the unaccounted and clandestine removal of the goods as evidenced by the seized documents and statements. Ms.Subhadra Kunduri as Head-Corporate Planning was aware that no excise duty was paid on the goods cleared and yet knowingly signed the packing slips for goods consigned to APTRANSCO. None of these individuals have put forth any denials against the allegations nor come forward with any evidence to contradict the findings narrated in the notice. Therefore, their roles in the clandestine removal of ACSR Conductors by MPTEL during the period from March 2000 to March 2002 stand proved beyond any doubt. Therefore they are liable for penalty under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. 27. In view of the above discussions, I pass the following order: ORDER (i) I confirm Central Excise Duty of Rs.2,76,46,994/- (two crores seventy six lakhs forty six thousand nine hundred and ninety four) demanded from MPTEL relating to the ACSR conductors removed (to TNEB, HVPNL, RRVPNL & APTRANSCO) during the period from 1999-2000 (from March 2000) to 2001-02 (upto March 2002) under Rule 9 (2) of the Central Excise Rules, 1944 and under Rule 17(1) of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002 read with proviso to Sec.11A(2) of the Act. (ii) I appropriate the amount of Rs.50 lakhs (fifty lakhs) paid by MPTEL on various dates during the investigation and as detailed in Annexure E of the SCN towards the above duty demand and the balance amount is liable to be paid by MPTEL. (iii) I hold that MPTEL is liable to pay interest at appropriate rates on the amount of duty at (i) above under Sec.11AB of the Act. (iv) I impose a penalty of Rs.2,76,46,994/- (two crores seventy six lakhs forty six thousand nine hundred and ninety four) on MPTEL being an amount equivalent to the duty determined above under Se.11AC of the Act. (iv) I impose a penalty of Rs.2,76,46,994/- (two crores seventy six lakhs forty six thousand nine hundred and ninety four) on MPTEL being an amount equivalent to the duty determined above under Se.11AC of the Act. (v) In terms of Sec.11D(3) of the Act, I confirm an amount of Rs.89,58,603.76 (Rules eighty nine lakhs fifty eight thousand six hundred three and seventy six paise only) is due to be paid by MPTEL to the account of the Government. (vi) I impose a penalty of Rs.35 lakhs (thirty five lakhs) on MPTEL under Rule 209 of the Central Excise Rules, 1944 and Rule 25 and 27 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002 for contravention of the various provisions. (vii) I impose a penalty of Rs.15,00,000/- (fifteen lakhs) on Dr.B.a.Rajagopalan, Senior President of MPTEL under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. (viii) I impose a penalty of Rs.5,00,000/- (five lakhs) on Shri.B.Muralidhar, Special Director of MPTEL under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. (ix) I impose a penalty of Rs.5,00,000/- (five lakhs) on Adelwert S. Dumenil, President of MPTEL under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. (x) I impose a penalty of Rs.1,00,000/- (one lakh) on Ms.Subhadra Kunduri, Head-Corporate Planning of MPTEL under Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002." (emphasis supplied) 13. Chapter-V of the Central Excise Act, 1944 provides for settlement of cases. Petitioner based on the show cause notice admitting certain liability filed an application for settlement of the case. From the narration of the facts in the order of the Settlement Commission it appears that the petitioner admitted a sum of Rs.89,58,604/- and paid the same in installments and there is no dispute on this. The adjudicating authority on his part proceeded to adjudicate the case as above as there was no stay of proceedings. From the narration of the facts in the order of the Settlement Commission it appears that the petitioner admitted a sum of Rs.89,58,604/- and paid the same in installments and there is no dispute on this. The adjudicating authority on his part proceeded to adjudicate the case as above as there was no stay of proceedings. The Settlement Commission, however, on the basis of the application filed proceeded to decide the matter on the basis of the pleadings of the petitioner and the stand of the department independently and passed orders from time to time admitting the case and granting time for payment of admitted liability. 14. The Settlement Commission after considering the stand of the petitioner and that of the Department, came to the conclusion that the benefit of notification No.8/97 can be extended to illegal clearance made by the applicant, an export oriented unit in respect of DTA sales even though it is done without permission. The relevant portion of the order reads as follows:- "The main point to be decided by the Bench is as to what rate of duty should be applicable to the clearances made by the applicant, i.e., whether the duty chargeable should be only be the Central Excise Duty in terms of notification No.8/97-CE or it should be customs duty applicable in terms of proviso to Section 3(1) of the Central Excise Act, 1944. After careful examination of the various aspects involved, the Bench observes that in this case, the final product manufactured was from indigenous raw material. Besides, the capital goods used in the manufacture were also indigenous. The only aspect that remains in the present case is that the goods were removed without permission and without following the necessary procedures and formalities. Considering the decision of the Honourable Supreme Court in civil appeal No.D/4511 of 2006, in the case of Commissioner Central Excise, Ahemedabad, read with the Tribunal order as reported in 2005(191) ELT 1174 (Tri-Mumbai) in the case of M/s.Denim Limited vs. Commissioner Central Excise Ahemedabad, as discussed in para 5.1 above, it is observed that the benefit of exemption would be applicable even to goods cleared to DTA without permission as applicable to goods cleared to DTA with due permission. Thus, in this case, the benefit of Notification No.8/97-CE can be extended to the illegal clearances made by the applicant. .............. Thus, in this case, the benefit of Notification No.8/97-CE can be extended to the illegal clearances made by the applicant. .............. The fact that finished products were manufactured out of indigenous raw material had been certified by the department. In view of this, the Bench is of the view that the duty liability in this case shall be in accordance with the rate applicable in terms of notification No.8/97 and the duty amount of Rs.89,58,604/- involved had since been discharged. The Bench has also considered the delay of two months in discharging this. However, considering the amount involved and cooperation extended by the applicant, the delay of two months in paying the same is condoned and the payment regularized in terms of the Admission Order. Incidentally, in this case, the Show Cause Notice had demanded Rs.2,76,46,994/-, under proviso to Section 11A of the Central Excise Act, 1944, and an amount of Rs.89,58,604/- under section 11D of the Act. It is observed that the demand of Rs.2,76,46,994/- also includes the amount of Rs.89,58,604/-, and, hence, such a sum cannot be demanded twice on the same goods. However, in this case, the final duty liability to be discharged by the applicant is only Rs.89,58,604/-, as discussed earlier, and the same had been discharged by the applicant." 15. Insofar as the penalty is concerned, the Settlement Commission was of the view that the petitioner company and the various officers who have been charged for penalty have collected duty from the customers for goods removed on DTA sales to various Government agencies. However, they failed to deposit the same to the revenue and that is the serious offence and the company has enjoyed the financial benefits by not paying the same to the revenue promptly and therefore, penalty is leviable. 16. Insofar as co-applicants is concerned the Settlement Commission was of the view that they cannot escape from the penalty for the illegal clearance already made, particularly, in view of their statement of admission of clandestine clearance and evasion of duty. Since the duty liability has been fully discharged and the case was settled in terms of Sub-section (7) of Section 32F of Central Excise Act, 1944, the Settlement Commission passed the following order:- "... Since the duty liability has been fully discharged and the case was settled in terms of Sub-section (7) of Section 32F of Central Excise Act, 1944, the Settlement Commission passed the following order:- "... since the amount of duty liability had been discharged in full, the case is settled finally in terms of sub section (7) of Section 32F of Central Excise Act, 1944, under the following terms and conditions:- i) The duty amount is settled at Rs.89,58,604/-. Since the same has been paid by the applicant, no further amount remains to be paid by the applicant. ii) The applicant shall pay a simple interest @ 10 per cent p.a., on the settled duty amount from the date the duty was due till the date of payment of the same. Revenue shall calculate the interest payable accordingly and communicate to the applicant within 15 days from the date of receipt of this order and the applicant shall pay the same within 15 days thereafter and report compliance. iii) A penalty of Rs.9.0 lakhs is imposed on the applicant in terms of Central Excise Act, 1944, and rules made therein. A penalty of Rs.1.0 lakh each is imposed on all the four co-applicants, all senior executives of the applicant company, viz., Ms.Subhadra Kunduri, Head-Corporate Planning; Shri B.Muralidhar, Special Director; Dr.B.Rajagopalan, Senior President & Shri A.S.Dumenil, President; for their role in the offence. iv) The applicant and all the co-applicants are, however, granted immunity from prosecution under the provisions of Central Excise Act, 1944. 9. The above immunities are granted in terms of Sec.32K(1) of the Central Excise Act, 1944. The immunities granted above are liable to be withdrawn if, at any time, it comes to the notice of the Bench that, in obtaining this order of settlement, any material particulars have been withheld, or any false evidence has been given. The attention of the applicants is also drawn to sub-sections (2) and (3) of Section 32 K ibid." Challenging the same, the present writ petition has been filed. 17. The writ petitions are primarily canvassed on the ground that levy of penalty on the company and the individuals is bad stating that there is no justification for the Settlement Commission to impose the penalty as above when the admitted duty liability has been discharged. Further, the specific provision of law under which penalty is imposed has not been quoted. 18. Further, the specific provision of law under which penalty is imposed has not been quoted. 18. The learned counsel appearing for the petitioner relied upon the decision of the Apex Court in Amrit Foods – vs. - Commissioner of Central Excise, UP reported in (2005) 13 Supreme Court Cases 419. He relied upon para 5 of the decision which reads as follows:- "5. The Revenue has preferred an appeal from the order of the Tribunal setting aside the imposition of penalty under Rule 173-Q of the Central Excise Rules, 1944. The Tribunal has set aside the order of the Commissioner on the ground that neither the show-cause notice nor the order of the Commissioner specified which particular clause of Rule 173-Q had been allegedly contravened by the appellant. We are of the view that the finding of the Tribunal is correct. Rule 173-Q contains six clauses, the contents of which are not same. It was, therefore, necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of Rule 173-Q. This not having been done, the Tribunal's finding cannot be faulted. The appeal is, accordingly, dismissed with no order as to costs." He submits that as in that case referred to above, the exact nature of contravention under the relevant rule has not been discussed by the Settlement Commission and therefore, the imposition of penalty is bad. Petitioners also rely upon the decision cited at the time of admission, rendered by the Bombay High Court in V.Anantharaman – vs. - Union of India reported in 2003 (151) ELT 278 (Bombay). In that case, the Rule 209A of erstwhile Central Excise Rules, 1944, which relates to levy of penalty was considered and held that the revenue had not made out a case for imposition of penalty. It is, therefore, contended that there was no justification for levy of penalty by the Settlement Commission and prayed for setting aside the levy of penalty. 19. Sri K.Ramakrishna Reddy, learned Senior Central Government Counsel appearing for the revenue submits that the petitioners did not challenge the show cause notice, hence, an adjudication order was passed by the Commissioner demanding duty and levying penalty as contained in the order-in-Original No.18/2005 dated 28.11.2005. That order remains and has not been challenged. 19. Sri K.Ramakrishna Reddy, learned Senior Central Government Counsel appearing for the revenue submits that the petitioners did not challenge the show cause notice, hence, an adjudication order was passed by the Commissioner demanding duty and levying penalty as contained in the order-in-Original No.18/2005 dated 28.11.2005. That order remains and has not been challenged. In the meanwhile, petitioner and the Directors and the persons in-charge of the affairs of the company filed for settlement of the case as above and the matter was settled and the Department accepted it in spite of the order passed by the Commissioner (Adjudication). The original penalty imposed by the Commissioner is much higher and the Settlement Commission reduced the penalty to a lesser amount. To this extent the petitioners stand to gain. The provisions of Chapter V provides for levy of penalty and interest. Hence, prima facie the penalty levied cannot be challenged. 20. Admittedly, in this case, penalty is referable to Section 209A of the Central Excise Rules, 1944 and Rules 26 and 27 of the Central Excise (No.2) Rules, 2001 and Central Excise Rules, 2002. Rule 209A of the Central Excise Rules, 1944 reads as follows:- "RULE 209A. Penalty for certain offences:- Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or ten thousand rupees, whichever is greater." Rules 26 and 27 of Central Excise Rules, 2002 reads as follows:- "RULE 26. Penalty for certain offences:- Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees ten thousand, whichever is greater. RULE 27. RULE 27. General penalty:- A breach of these rules shall, where no other penalty is provided herein or in the Act, be punishable with a penalty which may extend to five thousand rupees and with confiscation of the goods in respect of which the offence is committed." 21. Rule 209A of the Central Excise Rules, 1944 provides for levy of penalty not exceeding to the duty on the goods liable for confiscation. In the same manner Rule 26 of the Central Excise Rules, 2002 provides for levy of penalty not exceeding the duty on the goods in respect of contraventions which makes the goods liable for confiscation under the Act. Rule 27 of the Central Excise Rules, 2002 provides for general penalty. This provision has been invoked in the show cause notice and based on the show cause notice, the petitioner has filed the application for settlement. 22. In terms of section 32F(7) of the Central Excise Act, 1944, the Settlement Commission after examination of the records and report of the Commissioner of Central Excise received under sub-section (1) and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6) and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction, can pass appropriate orders as it thinks fit on the matters covered by the application. Sub-section (9) provides for levy of duty, penalty or interest and the manner in which it has to be settled. Sub-sections (7) and (9) of Section 32(F) of the Central Excise Act, 1944, which are relevant, extracted hereunder:- "SECTION 32F. Sub-section (9) provides for levy of duty, penalty or interest and the manner in which it has to be settled. Sub-sections (7) and (9) of Section 32(F) of the Central Excise Act, 1944, which are relevant, extracted hereunder:- "SECTION 32F. Procedure on receipt of an application under Section 32E:- (1) to (6) xxx (7) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (1), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6). (8) xxx (9) Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts." Therefore, the first respondent has the power to decide the terms of settlement on duty, penalty or interest which has been done in this case. 23. While passing an order in terms of section 32F of the Central Excise Act, 1944, the Settlement Commission has the power to grant immunity from prosecution. It has the power to impose penalty wholly or in part. Section 32K(1) of the Central Excise At, 1944 reads as follows:- "SECTION 32K. 23. While passing an order in terms of section 32F of the Central Excise Act, 1944, the Settlement Commission has the power to grant immunity from prosecution. It has the power to impose penalty wholly or in part. Section 32K(1) of the Central Excise At, 1944 reads as follows:- "SECTION 32K. Power of Settlement Commission to grant immunity from prosecution and penalty:- (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either wholly or in part from the imposition of any penalty, fine and interest under this Act, with respect to the case covered by the settlement: Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E." 24. Section 32M of the Central Excise Act, 1944 makes the order of Settlement to be conclusive:- "SECTION 32M. Order of settlement to be conclusive:- Every order of settlement passed under sub-section (7) of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force." 25. On a conjoint reading of Section 32F sub-sections (7) and (9) of the Central Excise Act, 1944, Section 32K and the order under challenge and the reasoning of the Settlement Commission, it is apparent that the Settlement Commission has considered the claim of the petitioner company on merits for settlement of the case in terms of the notification under which they claimed benefit and has allowed the application accepting the amount paid by the petitioner company in variance to the liability as per show cause notice. No further amount towards duty remains to be paid by the petitioner company. No further amount towards duty remains to be paid by the petitioner company. However, taking note of the fact that the petitioner company and the persons responsible for the affairs of the company were engaged in manufacturing and clandestine removal of excisable goods from EOU unit to DTA and having received the excise duty component from the customers, and failing to remit the amount to the revenue, came to conclusion that the appropriate penalty should be imposed on the company as well as the Directors. That power is available with the Settlement Commission in terms of Section 32F(9) of the Central Excise Act, 1944. In terms of Section 32K of the Central Excise Act, 1944, power to grant immunity from prosecution and penalty is available to the Settlement Commission. Section 32M of the Central Excise Act, 1944 makes the order of settlement conclusive. 26. Similar contention has been upheld by the Supreme Court Brij Lal and others – vs. - Commissioner of Income Tax, Jalandhar reported in 2010 STPL (Web)858 SC and that relates to proceedings under income tax Act. 27. The Settlement Commission has passed an order in accordance with the provisions of the Chapter-V of the Central Excise Act, 1944, for settlement of the cases on payment of duty. The Settlement Commission has passed the order in exercise of its power in terms of section 32F(7) and (9) of the Central Excise Act, 1944. Hence, petitioners plea of error in the order imposing duty, penalty and interest as bad on the ground that the specific provision has not been referred to is a misconceived plea and not tenable in law. The discretion is left to the Settlement Commission to impose appropriate duty, penalty and interest. Therefore, this Court finds no error of law in the proceedings of the Settlement Commission. The order passed is well within its jurisdiction. 28. Coming to the case relied upon by the learned counsel for the petitioners in the case of V.Anantharaman – vs. - Union of India reported in 2003(151) E.L.T. 278 (Bombay), it is the case where the classification of the goods was the issue. It was not the case of the revenue in that case that there was clandestine removal of goods. It was not the case of the revenue in that case that there was clandestine removal of goods. The Department's case in that show cause notice, there was no allegation that the department had reason to believe that the person was involved in acquiring possession of or in any way concerned in transporting, removing or selling the goods, which he knew or had reason to believe are liable for confiscation under the Act or the Rules. The Court was of the view that in a case where the revenue did not contend clandestine removal of goods, the question of invoking penal provisions against the petitioner was bad. That is not the case in hand, as admittedly, the company and the persons concerned in the present case were charged for an offence of manufacturing and clandestine removal of excisable goods contrary to law and collection of excise duty from the customers which was not remitted to the revenue. The findings in the present case regarding excise violations are admitted. Hence, the facts of the V.Anantharaman's case (cited supra) will not be applicable to the facts of the present case. 29. The decision of the Apex Court in Amrit Foods – vs. - Commissioner of Central Excise, UP reported in (2005)13 Supreme Court Cases 419 relates to penalty imposed under Rule 173Q of Central Excise Rules 1944 under chapter VII-A. The said rule has not been invoked in the present case either for confiscation or for imposition of penalty. Hence, it has no application to the facts of the present case. 30. On the contrary, in the present case, petitioners company and the persons in-charge of the affairs of the company have been specifically charged under section 209A of the old Central Excise Rules, 1944 and also under Sections 26 and 27 of the Central Excise Rules, 2002. Petitioners have not disputed the penal provision invoked by the revenue and therefore, Rule 173Q referred to in the Amrit Foods case(cited supra) will have no application to the facts of the present case. 31. Petitioners have not disputed the penal provision invoked by the revenue and therefore, Rule 173Q referred to in the Amrit Foods case(cited supra) will have no application to the facts of the present case. 31. Sri K.Ramakrishna Reddy, learned Senior Central Government Counsel rightly pointed out the Constitution Bench Judgment of the Apex Court in Brij Lal & others – vs. - Commissioner of Income Tax, Jalandhar reported in 2010 STPL (Web) 858 SC to emphasize the fact that the order of Settlement Commission is conclusive as to the matters stated therein and it cannot be subjected to further detailed enquiry. 32. On factual aspects, particularly, on the levy of penalty as has been done in the present case, petitioners are not able to establish a case to show that the order under challenge is contrary to law or is in any way perverse, arbitrary or without jurisdiction. The Court under Article 226 of the Constitution is not inclined to go into the issue relating to the quantum of penalty imposed by the Settlement Commission and the rational behind imposition of such penalty. The power given to the Settlement Commission, unless exercised in violation of the provision of the Act, cannot be challenged and the petitioners' plea on the above issue fails. 33. In the result, all the four Writ Petitions fail and are dismissed. No costs. The interim stay granted in the miscellaneous petitions are vacated. Consequently, all the connected miscellaneous petitions are closed.