TMI Blog2005 (3) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... pany at Patna and business premises of M/s. Wilson Diesel (P) Ltd., Patna. The search resulted in seizure of excisable goods (Alternators) valued at Rs. 43,500/- from the factory of M/s. Generators and Alternators India on the ground that no record was being maintained in the factory for the aforesaid goods. Some records were also seized. Show cause notice dated 25th September, 1989 was issued by the Collector, Central Excise, Kannur to M/s. India Casting Company, M/s. Generators and Alternators India, Wilson Diesel (Pvt.) Ltd., Sri G.K. Agarwal, A.K. Agarwal, V.K. Agarwal, Smt. Manju Rani Agarwal and Smt. Archana Agarwal requiring them to show cause as to why Central Excise duty amounting to Rs. 5,71,615/- and Special Duty amounting to Rs. 9,549.75 p. be not recovered from them under Rule 9(2) of the Rules and a penalty be not imposed under Section 11A of the Central Excise Act, 1944. Said parties were also required to state why the seized goods valued at Rs. 43,500/- be not confiscated under Rules 173Q and 226 of Central Excise Rules, 1944 and why penalty be not imposed under Rules 9(2), 52A, 173Q and 226 of Central Excise Rules, 1944. They were also required to show cause why th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner, Central Excise. 5. Appeals filed by all the aggrieved persons came up for hearing before the Tribunal. Tribunal vide impugned order dated 24-12-1999 decided all the appeals by the said order. Tribunal set aside the penalty imposed on Sri G.K. Agarwal, A.K. Agarwal, V.K. Agarwal, Smt. Manju Rani Agarwal and Smt. Archana Agarwal. It, however, upheld the penalty imposed on the petitioners. Tribunal held as follows : "The present appeal are against the imposition of penalty under Rule 209A of the Central Excise Rules. In the impugned order there is a specific finding that M/s. Wilson Diesel (P) Ltd. appellant issued the bills showing the clearances of diesel engine and M/s. Generators' Alternators (India) appellant issued bill showing the clearance of alternators, whereas a complete generating set was cleared by M/s. India Casting Company. Therefore, we agree with the arguments of the learned Departmental Representative in respect of these appellant that they abetted M/s. India Casting Company in removal of generator set without payment of duty showing as generator set and alternator. Therefore, finding in the impugned order passed by the Collector of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondents. 8. Learned Counsel for the petitioners submitted that the issue involved in the present petition is squarely covered by the decision of this Court in writ petition No. 209 of 2002, Om Prakash Gupta v. Union of India, decided on 3rd December, 2003 [2004 (178) E.L.T. 150 (All.)]. He further submitted that the petitioners were co-noticee to the M/s. India Casting Company whose matter has been settled under Kar Vivad Samadhan Scheme hence, penalty in the case of petitioners should also be waived/deleted. 9. Learned Standing Counsel for Union of India has not disputed the fact that the petitioners were the co-noticee with the main noticee M/s. India Casting Company in the show cause notice dated 25th September, 1989 issued by the Collector, Central Excise, Kanpur. 10. In exercise of powers conferred under Section 97(1) of the Scheme, Government of India, Ministry of Finance issued the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order, 1998 deemed to have been made effective from 1-9-1998. The order provided as follows : "Whether a declaration to the designated authority has been made in respect of tax arrear in relation to indirect tax ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Scheme has been promulgated. Tax arrears has been defined with regard to indirect enactment as the amount of duties, cesses, interest, etc., determined as due or payable under that enactment as on the 31st day of March, 1998 but remaining unpaid as on the date of making a declaration under Section 88. Under Section 88 of the Scheme where a person makes a declaration to the designate authority in accordance with the provisions of Section 89, then the liability shall be discharged as per the Scheme. It can be seen that so far as the sections were concerned, no distinction is there made with regard to a principal notices or a co-notice. All are entitled to get the benefit of the Scheme whether the matter is pending in appeal or not The removal of Difficulties Order was issued because where the principal notices had settled the matter under the scheme, what should be done with regard to the co-notices. It is in that context, Ext. P3 was issued. In Ext. P3 it is stated that much co-notices are entitled to the benefit of the Scheme provided the show cause notice is pending adjudication on the date of making of the declaration. In the explanatory note, it is stated that a settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench of Kerala High Court. Hon'ble Supreme Court held as follows : "We have heard the parties. In our view, a reading of the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order shows that where a declaration had been made in respect of a tax arrear and where in respect of the same matter a show-cause notice had also been issued to any other person, then the settlement in favour of the declarant has to be deemed to be full and final in respect of other persons on whom show-cause notices had been issued. It is settled law that when an appeal is pending there is no finality to the proceedings. The proceedings are then deemed to be continuing. Undoubtedly, at one place the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order seems does state that the show-cause notice should be pending adjudication. However, the same Order also talks of the show-cause notice being in respect of the same matter on which the show-cause notice has been 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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