TMI Blog2019 (9) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the invoice misdeclaring the value. This invoice was the document which was the basis for filling the B/E misdeclaring the value of imported goods. Once it is established that Shri Kaushal A Shah and Shri Jiten Shah were responsible for filing or causing to file the documents misdeclaring the value of goods, section 114AA gets attracted. It is not even the case in the adjudication order that the penalties for the same offence and under the same provision has been imposed upon the proprietor and proprietorship concerns. The adjudication order itself refrains from imposing penalty under Section 112(a), on the proprietors as penalties under the said section have been imposed on proprietorship firms. Appeal dismissed. - C/85235,85236,85579,85581,85582/2013 - FINAL ORDER NO. A/86704-86708/2019 - Dated:- 24-9-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri Rohan Balani, Advocate, for the Appellant Shri A.P. Kothari, Additional Commissioner, Authorised Representative for the Respondent ORDER These appeals are directed against the order in original no.117/2012 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Settlement Commission. 2.3 Commissioner proceeded to adjudicate the case against the remaining noticees and for act of abetting the act of misdeclaration for which goods were liable to confiscation, imposed penalty under section 112(a) of Customs Act, 1962 and also imposed penalty under Section 114AA on the persons responsible for filing or causing the documents to be filed mis declaring the value. 2.4 Aggrieved by the impugned orders appellants have preferred these appeal. 3.1 We have heard Shri Anil Balani, Advocate for the Appellant and Shri A.P. Kothari, Additional Commissioner, Authorized Representative for the revenue 3.2 Arguing for the appellants learned counsel submitted that- Section 111(d) and 111(m) could not have been invoked against them as the goods under importation were neither prohibited goods, nor were misdeclared by them. In fact appellants had not even filed the Bill of Entry in respect of the imported goods. Just because person filing the Bill of Entry has settled the issue and has admitted and paid the differential duty charge of undervaluation do not get established agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties imposed on the appellants are justified. Tribunal has in case Mamta Garg [2018 (359) ELT 77 (T)] held that penalties could have been imposed on the persons to whom the notice has been issued even if the persons on whom demand has been made settles the issue by approaching settlement commission. 4.1 We have considered the impugned order, submissions made in the appeals and during the course of argument of appeals. 4.2 Once the person who has filed the Bill of Entry has admitted and paid the differential duty on account of misdecalaration of value, the value as determined in the show cause notice and by the settlement commission will become the value under section 14 of the Customs Act, 1962. We do not find any merits in the submissions of the Appellant that the Commissioner should have again considered and re-determined the value, as per the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007. Once the value has been found declared the goods become liable for confiscation under Section 111(m) of the Customs Act, 1962 and the person misdeclaring or abetting in such misdeclaration is liable to penalty under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the right, title and interest of the Company in relation to every textile undertaking shall stand transferred to and shall vest in the Central Government . Section 4 says that section 3 shall be deemed to include all assets, leaseholds, powers, authorities, privileges and all properties, movable and immovable ... pertaining to the textile undertakings and all other rights and interests in or arising out of such property . Francis Bennion in Statutory Interpretation 1984 Edition page 526 para 238 states that Hansard reports, and other reports of parliamentary proceedings on the Bill which became the Act in question, are of obvious relevance to its meaning. They are often of doubtful reliability however. (emphasis supplied) The documents in question which are sought for do not relate to the enacting history or any past enactment or the present enactment. The notings made in various Departments at various levels by the officers namely, the Under Secretary, Deputy Secretary, Joint Secretary; Secretary etc., whatever their view might be, is not the view of the Cabinet. The ultimate decision is taken by the Cabinet. So the notings cannot and are not guides as to what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Officer, Ernakulam and another, [1982] 1 S.C.R. 629, where this Court reiterated that the speech made by the Minister over of the Bill explaining the reason for the introduction of the Bill could certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted. It has been reiterated that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. See in this connection the observations of this Court in Chern Taong Shang anr. etc. etc. v. Commander S.D. Baijal Ors., J.T. 1988 1 S.C. 202. The documents now sought for by the petitioner do not fall within this category. It is neither the object and scheme of the enactment nor the language used therein, that is sought for in the instant case. It is certainly relevant to know the mischief that was intended to be remedied. But in the documents in question which the petitioner is seeking no such correlation has been established. These are, therefore, not relevant. We reiterate that no officer of the Department can speak for the Parliament even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. See in this connection the discussion in Cross Statutory Interpretation-2nd Edition, pages 20-30. Thus in our view when the wordings of the statue are plain and unambiguous, courts and tribunal could not have taken and contrary view, by relying on the external aids as have been sought to be relied upon by the appellants. In our view the decisions of tribunal and Commissioner having failed to consider the decision of Apex Court as referred above are per-incuariam and cannot be binding precedent. Apart from the legal submission made by placing the reliance on the 27th Report, appellant have not been able to counter the finding of facts recorded by the Commissioner for imposing penalty under Section 114AA. 4.5 We are also not in agreement with the submissions made by the appellants relying on the various decisions of tribunal to state that penalties could not have been imposed on the co-noticee when the main appellant has settled the issue. In case of Mamta Garg, referred to by the authorized representative, tribunal has by majority view laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to the main declarant. Then the order provides that a settlement in favour of the declarant will be deemed to be full and final in respect of other persons also. This order has to be read as a whole. If read as a whole, it is clear that a settlement by the main declarant is to operate as full and final settlement in respect of all other persons on whom show cause notice was issued in respect of the same matter. Thus read as a whole the words pending adjudication cannot be read to exclude cases where the proceedings are still pending in appeal. Even otherwise the order has to be read along with the Kar Vivad Samadhan Scheme. Under the Kar Vivad Samadhan Scheme a party can file a declaration so long as the proceedings are pending. Thus, even though the show cause notice may have been adjudicated upon and an appeal is pending a party could still take the benefit of the Kar Vivad Samadhan Scheme and file a declaration. The object of the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order is to give benefit of a settlement by the main party (i.e. the Company in this case) to all other co-noticees. This being the object a classification, restricting the benefit only to cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immunity. In this context, the term co-noticee has to be examined for the legal implications - are they party to the same single offending act or they are party to distinct offending acts, which can be penalized independently without even reference to the other person s role. Examined in this angle, it is apparent that no summary conclusion that all co-noticees of a show cause-cumdemand notices will get immunity from penalty, if one of them gets the matter settled before the Settlement Commission. No such legal provisions are available in the Central Excise Act, 1944 or the rules made thereunder. In other words, no blanket immunity to all the noticees will automatically come into operation when one of the noticees, even if he is the main noticee, approaches and gets the matter settled before the Settlement Commission. It is necessary to examine the role of each of the notices to appreciate whether they had committed an act, which, independently, is liable for penal action. If their act is directly linked to the main offence as part and parcel of the same offence or they are involved only in abetting the main offence, then they may be covered for immunity based on the ratio follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of fraud in the hands of dishonest litigants. The courts of law are meant for importing justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 36 . The Hon ble Bombay High Court in Yogesh Korani -2003 (159) E.L.T. 3 (Bombay), as affirmed by the Hon ble Supreme Court reported in 2004 (163) E.L.T. A50 (S.C.), held that when the penalty was levied on the petitioner based on the independent and distinct causes of action then they cannot be considered on par with the main noticee. The reliance placed by the ld. Counsel on S.K. Colombowala (supra) and various other decisions, which followed the same, can be distinguished by examining the allegations in notice and role of each person, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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