2017 (7) TMI 217 - AT - Customs

Conflicting decisions on co-noticees' immunity from penalties under Customs Act, 1962 referred to Larger Bench for resolution.

Alberto Bestonso Versus Commissioner of Customs (NS-V), JNCH, Nhava Sheva

The Tribunal referred the case to a Larger Bench to resolve conflicting decisions on whether co-noticees are entitled to immunity from penalties under the ... Penalty - misdeclaration of imported goods - whether the appellant is eligible for immunity from penalties in case when the main appellant's case was settled before the Settlement Commission? - Held that: - Since on the issue in hand there are conflicting decisions of this Tribunal as discussed above, the dispute needs to be resolved by the Larger Bench - matter referred to Larger Bench. Issues:Appeal against imposition of penalties under Customs Act, 1962 for misdeclaration of imported car; Eligibility for immunity from penalties when main appellant's case settled before Settlement Commission; Conflict of decisions regarding waiver of penalty for co-noticees in the same show cause notice.Analysis:The appellant appealed against penalties imposed under Sections 112(b) and 114AA of the Customs Act, 1962 for misdeclaration of an imported car. The appellant argued for immunity from penalties, citing settlement of the main appellant's case before the Settlement Commission. The appellant relied on various judgments, including S.K. Colombowala, Radiant Silk Mills, and others, to support their claim for immunity. However, the Revenue contended that the decision in K.I. International, based on a Supreme Court decision, deemed the S.K. Colombowala decision as not good law. The Tribunal noted conflicting decisions on the issue of immunity and decided to refer the matter to a Larger Bench for resolution.The Tribunal considered the conflicting views on immunity from penalties when the main appellant's case is settled before the Settlement Commission. The Tribunal discussed the status of the S.K. Colombowala decision, noting that it was considered a Larger Bench decision based on previous judgments. However, a recent Supreme Court decision clarified that a reference to a third member in case of a conflict does not constitute a Larger Bench decision. Given the conflicting decisions of the Tribunal, the matter was referred to a Larger Bench to resolve the question of whether co-noticees are entitled to waiver of penalty when the main assessee's case is settled by the Settlement Commission.In conclusion, the Tribunal directed the matter to be placed before the Hon'ble President for constituting a Larger Bench to address the question of immunity from penalties for co-noticees when the main appellant's case is settled by the Settlement Commission. The decision highlighted the need for resolution due to conflicting views of two division Benches of the Tribunal on the issue at hand.