Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

Latest Case Laws

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2007 (7) TMI 514

be considered to be identical to Kar Vivadh Samadhan Scheme justifying invocation of case laws under the Kar Vivadh Samadhan Scheme? - majority order. - C/988, 987, 991, 990, 992 & 989/2004 - A/402-407/2007-WZB/C-I/(C.S.T.B.) - Dated:- 19-7-2007 - Ms. Archana Wadhwa, Shri M. Veeraiyan, Ms. Jyoti Balasundaram, JJ. REPRESENTED BY : S/Shri D.H. Nadkarni, Vipin Jain, Advocates with Vishal Agarwal, C.A., for the Appellant. Shri Ajay Saxena, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - All the appeals are being disposed of by a common order as they arise out of the same impugned order passed by the Commissioner of Customs, Mumbai vide which he has imposed penalties of varying amount upon the appellants in terms of the provisions of Section 112(a) and 112(b) of the Customs Act, 1962. The said penalties stand imposed upon the appellants on the allegations and findings that they aided and abetted one M/s. Amrit Laxmi Machine Works, Bombay in duty free imports against duplicate advance licences. 2. After hearing both the sides, we find that proceedings were also initiated against M/s. Amrit Laxmi Machine Works. However, the said noticee settled the dispute in Set .....

X X X X X X X

Full Text of the Document

X X X X X X X

la Prasad Sharma v. Commissioner of Central Excise, Mumbai [2005 (183) E.L.T. 21 (Tri.-Mumbai)] is a judgment where the main accused settled the dispute before Settlement Commission and the penalty on the co-accused was set aside on the ground that where the Settlement Commissioner has granted immunity to the main accuse from levy of penalty, co-accused cannot be vested with any higher penal consequences than the main accused. In view of the above, we set aside, the impugned order of imposition of penalties upon the appellants and allow all the appeals with; consequential relief to them. (pronounced in court on.........................) Sd/- (Archana Wadhwa) Member (Judicial) dated 12-12-2006 4. [Order per : M. Veeraiyan, Member (T)]. - I have carefully gone through the order proposed by my learned sister Mrs. Archana Wadhwa, Hon ble Member (Judicial). As I am not in a position to pursue myself to accept the same, I proceed to record a separate order. 5. The following are the facts and findings as per Commissioner s order which are relevant : (a) M/s. Amrit Laxmi Machine Works was a holder of an advance licence issued to them in November, 1996 enabling them import of 248 piece .....

X X X X X X X

Full Text of the Document

X X X X X X X

losure. (g) In respect of other noticees which include the present appellants adjudication proceedings were continued and completed and penalties imposed by the Commissioner vide his order dated 13-7-2004. The penalties imposed on the appellants are as detailed below : S. No. Name of the appellant Amount (Rs.) 1. Shri S.K. Colombowala, Director, East West Freight Carriers Pvt. Ltd. 10,000/- 2. East West Freight Carriers Pvt. Ltd. 5,000/- 3. Shri Manharlal H. Vora, Authorised Signatory, Shalin Bearings Corporation 2,00,000/- 4. Mr. Ashwin Shantilal Mehta of Nippon Bearing Pvt. Ltd. 2,00,000/- 5. Nippon Bearing Pvt. Ltd. 1,00,000/- 6. Shalin Bearings Corporation 1,00,000/- . No. Name of the appellant Amounts (Rs.) 1. Shri Manharlal H. Vora 1,00,000/- 2. Mr. Ashwin Shantilal Mehta 1,00,000/- 3. Nippon Bearing Pvt. Ltd. 50,000/- 4. Shalin Bearings Corporation 50,000/- 6. The proposed order of Ld. Member (Judicial) allows appeals of these persons on the ground that M/s. Amrit Laxmi Machine Works and its Director were granted immunity from penalties by the order of the Settlement Commission and relies on the judgments relating to Kar Vivadh Samadhan Scheme and a judgment of the Sing .....

X X X X X X X

Full Text of the Document

X X X X X X X

here is no evidence of the knowledge and involvement in the fraudulent acquiring of the duplicate licence or use of the same to evade customs duty. It is held by the Commissioner that Colombowala could have easily sensed the fraudulent intention behind the deeds of Shri Vora and Shri Mehta and should have cautioned them of the consequences and should have informed the department if the caution was not adhered by them. Such a finding only shows that at the most there was negligence on the part of CHA and its Director and therefore no penalty is warranted on these two appellants. Sd/- (M. Veeraiyan) Member (Technical) Dated 2-2-2007 DIFFERENCE OF OPINION 13. Whether the provisions relating to Settlement of cases under the Customs Act can be considered to be identical to Kar Vivadh Samadhan Scheme justifying invocation of case laws under the Kar Vivadh Samadhan Scheme? 14. Whether M/s. Amrit Laxmi Machine Works and its Director played main role in the fraud or the others, namely, Shri Manharlal H. Vora, Mr. Ashwin Shantilal Mehta, Nippon Bearing Pvt. Ltd., Shalin Bearings Corporation are the main persons in the crime? 15. Whether treating the appellants as mere co-notic .....

X X X X X X X

Full Text of the Document

X X X X X X X

which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of mis-declaration or otherwise of goods, to the Settlement Commission to have the case settled and such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made unless - (a) the applicant has filed a bill of entry, or a shipping bill, in respect of import or export of goods, [as the case may be, and in relation to such Bill of entry or shipping bill] a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees :- 20. The expression case has been defined in the Section 127A in the following manner : - 127A(b). - case means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, or any proceeding by way of appeal or revision in connecti .....

X X X X X X X

Full Text of the Document

X X X X X X X

ement Commission, it is only the Settlement Commission which will have exclusive jurisdiction over that case to the exclusion of any other officer of customs who had jurisdiction over such case prior to the application having been made, as per Sec. 127J. (e) Settlement provisions do not refer to any co-noticee or co-accused or any other applicant who is not liable to pay duties of customs. 23. In the instant case, the case which was pending before the Commissioner who has passed the impugned order, was a show cause notice wherein the duty has been demanded from the importer M/s. Amrit Lakxmi Machine works and penal action was proposed against other co-noticees, under the provisions of Sec. 112 of the Customs Act. The final order of settlement passed by the Settlement Commission settled the case by determining the amount of duty payable and granted immunity to the importer and its director both from confiscation of goods as well as penal action. There is no finding in the said order of the Settlement Commission as to the liability of the imported goods to confiscation under Sec. 11. The director of the imported company was also accorded immunity as he had filed a separate .....

X X X X X X X

Full Text of the Document

X X X X X X X

scation under Sec. 111. 24. Although the distinction between the KVS Scheme and the Settlement mechanism is that, while the KVS Scheme provides for settlement of tax arrears of each individual person, including those of co-noticees, settlement mechanism provides for settlement of the entire case as a whole, the fact that only the person liable to pay duty can make an application for settlement does not mean that the case in so far as the remaining co-noticees can continue even after a final order of settlement has been passed in relation to the case. 25. In view of the above, I do not intend to go into the correctness or otherwise of the finding of the ld. Member (T) that the major role was played by the appellants herein and the importer had only played the subsidiary role. The question as to who played the main role is not relevant for the purpose of the present case. 26. The points of difference are therefore, are answered as under : - (a) While the provisions of KVS Scheme and those relating to settlement of cases under the Customs Act are not completely identical, the underlying objective in both the scheme is similar and it is for this reason that the case .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||