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Shri Suresh B Uttekar Versus Commissioner of Central Excise, Mumbai-II

2017 (11) TMI 788 - CESTAT MUMBAI

Penalty u/s 112(b)(ii) of the CA, 1962 - non-payment of ADD - Section 28(4) of the Customs Act - Held that: - if duty, interest and penalty has been paid within 30 days of the issue of the SCN, then SCN is not sustainable - As it is admitted fact that the entire duty, interest and 15% penalty has been paid by the main party and the proceedings has been dropped, the co-appellant can’t to be penalized - penalty set aside - appeal allowed - decided in favor of appellant. - E/85176/17, E/CO/91047/17 .....

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s leviable if cleared as such into the DTA or used in manufacture of goods that are cleared to DTA. As they had not paid Anti Dumping duty, the proceedings under Section 28(4) of the Customs Act were initiated against M/s Duflon Industries Pvt. Ltd. as well as against the appellant. As M/s Duflon Industries Pvt. Ltd. paid the entire amount duty along with interest and 15% of duty amount as penalty in terms of Explanation 3 to Section 28 of the Customs Act, 1962. Therefore, the proceedings agains .....

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. To support this contention, he relied on the decision of the Tribunal in the case of Gautam Pukhraj Bafna Vs Commissioner of Customs, Mumba - 2014 (314) ELT 305 (Tri-Mum). 4. On the other hand, learned DR reiterates the findings of the impugned order and submits that as the appellant was co-appellant, therefore, penalty on the appellant is rightly imposed. He also relied on the decision of Yogesh Korani Vs. Union of India - 2003 (159) ELT 3 (Bom) which has been affirmed by the Hon'ble Apex .....

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s, learned DR relies on the decision of Yogesh Korani case (supra) to say that penalty is imposable on the co-appellant as he is co-obligant of indivisible act of principal noticee. I have gone through the decision of Yogesh Korani case (supra), the said decision is on Kar Vivad Samadhan Scheme, 1998 and the same is not relevant to the present case, therefore, the said decision is not applicable to the facts of the present case. 7. Whereas the learned Counsel for the appellant relies on Gautam P .....

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said importers and the money was being transferred by those importers through appellant to Dubai through hawala. Therefore, statements of various persons along with the appellant was also recorded and on the basis of statement recorded, penalty on the appellant of 5 lakhs under Section 112(a) of the Customs Act, 1962 were imposed. Aggrieved from the said order, the appellant is before me. And this Tribunal in para 8 of the order has observed as under: 8. Considered the contention and perused the .....

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