The discretionary powers conferred by Section 127C of the Customs Act, 1962 allow the Settlement Commission to impose penalties, grant immunity from prosecution, and reduce penalty amounts based on the facts and circumstances of each case.

Augustine George Masih, J.

1. The petitioner has challenged order dated 20-6-2008 (Annexure P-6) passed by the Settlement Commission, Customs and Central Excise, Mumbai, primarily on the ground that the penalty imposed on the petitioner is in gross violation of the principles of equality and fair play as also that it is against the factual position on record. It has been pleaded that the Settlement Commission has enforced different parameters in settling cases and to substantiate this, a copy of the order has been annexed as Annexure P-7. It has been further stated that the Commission has not taken into consideration the role of the petitioner in the matter while imposing penalty.

2. We have heard counsel for the petitioner and with his assistance have gone through the pleadings and the impugned order dated 20-6-2008 (Annexure P-6) passed by the Settlement Commission, Mumbai.

3. A perusal of the impugned order shows that the Settlement Commission has taken into consideration all the points raised by the parties concerned and has passed a detailed and comprehensive order. The conclusion drawn by the Settlement Commissioner is reproduced hereunder :-

#28;10.3. These 4 TPS licence holders, with intention to defraud the revenue, had violated the provisions governing import of goods under the TPS licences by illegally diverting the duty free imported goods to local market. They also tried to mislead the authorities by fabricating documents relating to transport and delivery of imported goods and its processing. These 4 TPS licence holders are in this business of export of rice for the last several years and had allowed the entire fabrication of documents by Minesh Shah for sharing the loot. They knowingly allowed themselves to be used by Shri Minesh Shah, for obvious financial gains. They failed to utilize the Licenses in accordance with the Target Plus Scheme. In view of the above, the 4 TPS licence holders are equally at fault. Penalty on the 4 TPS licence holders and Shri Minesh Shah are, therefore, called for. The investigations also highlight the role of Minesh Shah, who was the mastermind in this case and his past credentials of having been involved in earlier cases too warrant that no leniency be shown in grant of immunities. In determining the quantum of penalty on Minesh Shah, Bench has also kept in mind that he has already suffered incarceration for 3 months and that over Rs. 35 lakhs has been paid as interest and the duties of customs have already been discharged even without a Show Cause Notice. This reflects that the applicants and co-applicants have co-operated in the settlement process.#29;

4. The Settlement Commission has in exercise of its powers under sub-section (5) of Section 127C of the Customs Act, 1962 settled the customs duty qua the petitioner for Rs. 1,46,75,646/- and interest payable on this amount as Rs. 3,26,400/- which stood paid by the petitioner. A penalty of Rs. 25,00,000/- has only been imposed and immunity from prosecution under the Customs Act, 1962 has also been granted subject to the conditions that the penalty of Rs. 25 lacs is paid within 30 days of the order. Had this order not been passed the petitioner would have been liable to pay much higher penalty and would have faced prosecution under the Customs Act as well. The immunity from the prosecution and the reduction in penalty has been granted to the petitioner by the Settlement Commission as per the provisions of Section 127C of the Customs Act, 1962 , for the benefit of the petitioner. The Statute has bestowed Settlement Commission with discretionary powers and if such powers have been exercised diligently and reasonably, the same cannot be faulted with. Each order of settlement is based on the facts and circumstances of each case which may be peculiar to itself and, therefore, cannot be made the basis for terming an order discriminatory unless violative of the Statute.

5. In our view, the impugned order dated 20-6-2008 of the Set