TMI Blog2023 (5) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ly extend the benefit of an order passed by the Settlement Commission in respect of a party, to other noticees as well. Reliance placed by the appellant on the decision of the Supreme Court in Union of India v. Onkar S. Kanwar [ 2002 (9) TMI 101 - SUPREME COURT ] is misconceived. The said decision was rendered in the context of Kar Vivad Samadhan Scheme, 1998 for settlement of disputes. The Government of India had also passed Kar Vivad Samadhan Scheme (Removal of Difficulties) Order, 1998 on 08.12.1998 clarifying that in certain cases the settlement in favour of the declarant under sub-section (1) of Section 90 shall be deemed to be full and final in respect of such other person also on whom a show-cause notice was issued on the same matter covered under the declaration - there is no provision in the Customs Act, which extends the immunity available to a party that has successfully settled the case before the Settlement Commission, to other persons. Thus, the decision in Union of India v. Onkar S. Kanwar has no application in the facts of the present case. In A.M. Ahamed Co. v. Commissioner of Customs [ 2022 (11) TMI 639 - MADRAS HIGH COURT] , the Madras High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel along with Mr Dhruv and Mr Atri Mandal, Advocates. VIBHU BAKHRU, J. (Oral) 1. The appellant has filed the present appeals impugning a common order dated 07.12.2021 (hereafter the impugned order ) passed by the Customs, Excise and Service Tax Appellate Tribunal (hereafter the Tribunal ), whereby the appeals preferred by the appellant (Customs Appeal No. C/51953/2019-SM and Customs Appeal No. C/52105/2019-SM) were rejected. 2. The appellant had preferred the appeal, being Customs Appeal No. C/51953/2019-SM, against an order-in-appeal dated 02.05.2019 passed by the Commissioner of Customs (Appeals), whereby the appellant s appeal against an order-in-original dated 29.04.2016 was rejected. The appellant had preferred the appeal, being Customs Appeal No. C/52105/2019-SM, against an order-in-appeal dated 08.05.2019 passed by the Commissioner of Customs (Appeals) rejecting the appellant s appeal against an order-in-original dated 06.05.2016. 3. The appellant is essentially aggrieved by the levy of penalty under Section 112(a) of the Customs Act, 1962 (hereafter the Customs Act ). In terms of the orders-in-original dated 29.04.2016 and 06.05.2016, the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative of the appellant located in India, was searched. In addition, the premises of one Sh. Srikant Panda, who was an Indian representative of the Kelsen Group, was also searched. During the course of investigation invoices raised by the appellant were recovered from the premises of its representative, Sh. Prakash Menon. It is stated that the invoices raised by the Kelsen Group were recovered from its representative, Sh. Srikant Panda. The concerned officers found that the values shown in the invoices recovered from the representatives of the appellant and the Kelsen Group were higher than the value declared by SRI to the Custom Authorities at the time of importing the goods in question. Thereafter, statements of various persons were recorded. 9. According to the officers of DRI, the evidence and material collected during the investigations established the allegation that confectionary items exported by the appellant and the Kelsen Group were cleared on the basis of false invoices reflecting values, which were lower than the real consideration paid by the importer for the said goods. 10. Show cause notices dated 16.06.2014 were issued to various noticees including SRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act. 15. The findings of the Adjudicating Authority were upheld by the Commissioner of Customs (Appeals) as well as the learned Tribunal. Order-in-original dated 29.04.2016 16. Show cause notice dated 11.08.2014 was issued by the DRI in connection with the similar goods imported by M/s Jai Maa Ambey Impex (hereafter JMAI ). The nature of allegation made in the said show cause notice was similar to the one made in the show cause notice dated 16.06.2014. In this case, as well, the importer (JMAI) and some of the co-noticees filed an application under Section 127B of the Customs Act before the Settlement Commission and accepted the customs duty, interest and penalties as fixed by the Settlement Commission. The appellant did not prefer the said route. Accordingly, the show cause notice dated 11.08.2014 was adjudicated by the Adjudicating Authority. The allegations made in the show cause notice were found to be correct and by an order-in-original dated 29.04.2016, the Adjudicating Authority imposed a penalty of ₹13,00,000/- (Rupees Thirteen Lacs Only) on the appellant under Section 112(a) of the Customs Act. 17. The appeal preferred by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d offences have been committed within the territory of India. Thus, the contention that the levy of penalty under Section 112(a) of the Customs Act on the appellant was beyond the purview of the Customs Act is wholly misconceived. 21. The learned Tribunal had considered the aforesaid contention and held as under: 17. Having considered the rival contentions, I find that the charge of aiding and abetting have been established against the appellant company. I further find that the appellant company, though it was registered having Head Office in Dubai, but it was very much present in India through its Indian Representative Sh. Prakash Menon. I further find that through its Indian Representative, the appellant company have actively colluded and abetted with the Indian importers by various acts of commission and accordingly penalty has been rightly imposed under Section 112(a) of the Act. 17.1 I further find that the facts before the Hon ble Supreme Court in the ruling of Canon India Pvt. Ltd., (supra) are very different, inasmuch as there was no case of fraud and the original Bill of Entry was assessed on first check basis. Wherein in the present case there is admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had referred to the decision of the Supreme Court in Union of India v. Onkar S. Kanwar (supra) and observed that the effect of the settlement mechanism, as provided under the Kar Vivad Samadhan Scheme, 1998, would be applicable where orders are passed by the Settlement Commission under Section 127C (5) of the Customs Act. In that case, the importer had approached the Settlement Commission and made a true and fair disclosure relating to the import of goods. Accordingly, the importer was granted immunity from prosecution and fine/penalty. The Madras High Court held that in the circumstances, it would be unfair to continue the proceedings against the Custom House Agent (CHA) in relation to the very same transaction. We are unable to agree with the said view. The decision in the case of Union of India v. Onkar S. Kanwar (supra) was founded on Kar Vivad Samadhan Scheme (Removal of Difficulties) Order, 1998. The said decision does not support the view that in cases where the importer approaches the Settlement Commission under Section 127B of the Customs Act and makes a true disclosure, all other persons who are complicit in evasion of tax duty would automatically acquire im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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