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2015 (5) TMI 1004 - CESTAT MUMBAI

2015 (5) TMI 1004 - CESTAT MUMBAI - TMI - Levy of penalty - CHA - appellant was made co-noticee, wherein it was alleged that the appellant Shri Sanjay Kashikar filed the Bill of Entry in a casual manner and failed to exercise due diligence to ascertain the correctness of the information regarding true nature of the same. It was also alleged that the importer and the appellant deliberately attempted to clear the goods on payment of zero duty by mis-declaring the goods with the intention to evade .....

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Tribunal has held that once the case is settled by the Settlement Commission, it is settled in its entirety and such a case then, cannot be adjudicated qua other co-noticees. As regards imposition of penalty under Section 112 on the co-noticee, it was held that cases against all co-notcees comes to an end once order of settlement is passed in respect of the person entitled to file an application before the Settlement Commission, hence penalty imposed on the appellant cannot be sustained. - Decid .....

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a proprietor of M/s Tulip Enterprise, a firm holding CHA License No. 11/1117 and engaged in clearance of export and import cargo on behalf of their clients. He filed a Bill of Entry dated 13.9.2011 for clearance of the goods on behalf of their clients M/s Essel Mining and Industries Ltd. The goods were described in the Bill of Entry as Solar Power Generating System Sunny Tripower 17000 TL String Inverter and Solar Power Generating System RS 485 Interface, based on documents provided by the impo .....

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ourse of investigation, statements of Shri Pawan Jain, Vice President (Finance) of the importer, as well as of the appellant was recorded. In his statement recorded on 24.9.2011, Shri Pawan Jain was put to a specific question as to whether the string inverter' can be used as communication equipment of any kind , to which he answered that RS 485 Interface is a Connector used with every inverter for date communication between inverters . Since this information was also conveyed to the appellan .....

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e investigation, the Department issued a show-cause notice dated 8.10.2012 to the importer and the appellant was made co-noticee, wherein it was alleged that the appellant Shri Sanjay Kashikar filed the Bill of Entry in a casual manner and failed to exercise due diligence to ascertain the correctness of the information regarding true nature of the same. It was also alleged that the importer and the appellant deliberately attempted to clear the goods on payment of zero duty by mis-declaring the g .....

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ed 11.12.2014 settled the case in respect of main noticee. 2.3 The show-cause notice was adjudicated and Commissioner of Customs (Import) imposed a penalty of ₹ 4,00,000/- on the appellant under Section 112 of the Customs Act,1962. 2.4 Being aggrieved, the appellant is in appeal before this Tribunal. 3. The learned Counsel for the appellant submits that claiming of incorrect classification of the imported goods under CTH 85176290 as against CTH 85044029 has been construed as mis-declaratio .....

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tion of goods for its mis-classification under Section 111(m) or (o) of the Customs Act. Since the proposal for confiscation under Section 111 is not sustainable, automatically the proposal for penalty under Section 112(a) cannot survive. He further submits that in present case, there is not even a whisper of allegation to the effect that the appellant had knowingly or intentionally made, signed any declaration, statement or document which is false or incorrect. In view of this, no penalty can b .....

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ion under any provisions of the customs Act and consequently no fine was ordered. In view of this, the learned Commissioner has erred in imposing penalty on the appellant under Section 112(a) & Section 114AA of the Act. 3.2 He also relies the decision of this Tribunal in the case of S.K. Colombowala vs. Commissioner of Customs (Import), Mumbai - 2007 (220) ELT 492 (Tri-Mum), wherein this Tribunal, by majority decision has held that cases against all co-noticees comes to an end once order of .....

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