TaxTMI 
TaxTMI 
2007 (7) TMI 514
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....st M/s. Amrit Laxmi Machine Works. However, the said noticee settled the dispute in Settlement Commission who vide its Order No. 38/2002 dated 5-9-2002 settled the case on terms that an amount of Rs. 15,94,565/- (Rupees fifteen lakhs ninety four thousand five hundred sixty five only) deposited by the said notice be appropriated towards the admitted duty liability along with interest at the rate of 10%. Immunity was granted to the said noticee from fine, penalty and prosecution. As such, it is the appellant's case that no penalty having been imposed upon the main offender, imposition of penalties upon them in terms of the provisions of Section 112 is not called for. It is settled law that co-accused cannot be vested with any higher penal consequences than main accused. By referring to various, Ld. Advocate has argued that main accused stand absolved of penal consequences, no question of imposition of penalty on the co-accused can arise. 2. After hearing the Ld. DR, we find that the Hon'ble Supreme Court in the UOI of India v. Onkar S. Kanwar [2002 (145) E.L.T. 266 (S.C.)], held that settlement of dispute by main declarant under Kar Vivad Samadha Scheme to operate as full and....
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....a) M/s. Amrit Laxmi Machine Works was a holder of an advance licence issued to them in November, 1996 enabling them import of 248 pieces of bearings valued at Rs. 9,22,110/- within the overall value of Rs. 50,05,468/- allowed for duty free import and they were required to export goods valued at Rs. 3,52,96,940/-. (b) There were certain amendments to the licence and M/s. Amrit Laxmi Machine Works imported two consignments in January, 1997 and August, 1998. Licencee discharged export obligation by February, 1997. Still there was balance value on the licence for Rs. 27 lakhs and the licence was not being utilized after August, 1998 by the said firm which was valid up to 21-5-1999. (c) One broker dealing in advance licences, by name, Shri Jitendra Vakharia and Shri Ashwin Mehta of M/s. Nippon Bearings Pvt. Ltd., Mohanlal H. Vora of M/s. Shalin Bearing Corporation were mainly instrumental in making a false representation to DGFT as if the licence was misplaced; procuring Chartered Engineer's certificate to enable import of large quantity of different kind of bearings; procuring duplicate licence dated 22-11-19....
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.... 1. Shri Manharlal H. Vora 1,00,000/- 2. Mr. Ashwin Shantilal Mehta 1,00,000/- 3. Nippon Bearing Pvt. Ltd. 50,000/- 4. Shalin Bearings Corporation 50,000/- 6. The proposed order of Ld. Member (Judicial) allows appeals of these persons on the ground that M/s. Amrit Laxmi Machine Works and its Director were granted immunity from penalties by the order of the Settlement Commission and relies on the judgments relating to Kar Vivadh Samadhan Scheme and a judgment of the Single Member Bench of the Tribunal. 7. At the outset, it is observed that Kar Vivadh Samadhan Scheme is a one time scheme, which is on a different footing from the provisions relating to Settlement of cases by the Settlement Commission. The nature of applicants, the nature of relief granted and the conditions governing the Kar Vivadh Samadhan Scheme are also significantly different from the scheme of Settlement Commission. 8. Further M/s. Amrit Laxmi Machine Works and its Director approached the Settlement Commission and cooperated with the Settlement Commission and received ....
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....ore no penalty is warranted on these two appellants. Sd/- (M. Veeraiyan) Member (Technical) Dated 2-2-2007 DIFFERENCE OF OPINION 13. Whether the provisions relating to Settlement of cases under the Customs Act can be considered to be identical to Kar Vivadh Samadhan Scheme justifying invocation of case laws under the Kar Vivadh Samadhan Scheme? 14. Whether M/s. Amrit Laxmi Machine Works and its Director played main role in the fraud or the others, namely, Shri Manharlal H. Vora, Mr. Ashwin Shantilal Mehta, Nippon Bearing Pvt. Ltd., Shalin Bearings Corporation are the main persons in the crime? 15. Whether treating the appellants as mere co-noticees waiver of penalty should be granted on the ground that M/s. Amrit Laxmi Machine Works and its Director have obtained immunity from penalty by the order of the Settlement Commission. 16. Whether order proposed by ld. Member (Judicial) or Member (Technical) should be endorsed? Sd/- (Archana Wadhwa) Member (J) Dated 5-3-2007 Sd/- (M. Veeraiyan) Member (T) 17. [Per : Jyoti Balasundaram, Vice-President]. - I have heard both sides on the difference referred t....
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....e disposed of in the manner hereinafter provided : Provided that no such application shall be made unless - (a) the applicant has filed a bill of entry, or a shipping bill, in respect of import or export of goods, [as the case may be, and in relation to such Bill of entry or shipping bill] a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees :-------------" 20. The expression "case" has been defined in the Section 127A in the following manner : - 127A(b). - "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a proper officer or the Central Government on the date on which an application under sub-section (1) of Section 127B is made : Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act an....
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....s not liable to pay duties of customs. 23. In the instant case, the case which was pending before the Commissioner who has passed the impugned order, was a show cause notice wherein the duty has been demanded from the importer M/s. Amrit Lakxmi Machine works and penal action was proposed against other co-noticees, under the provisions of Sec. 112 of the Customs Act. The final order of settlement passed by the Settlement Commission settled the case by determining the amount of duty payable and granted immunity to the importer and its director both from confiscation of goods as well as penal action. There is no finding in the said order of the Settlement Commission as to the liability of the imported goods to confiscation under Sec. 11. The director of the imported company was also accorded immunity as he had filed a separate application for grant of immunity in his capacity as a co-noticee. The appellants herein did not file any application before the Settlement Commission and they claimed that they were not even aware of an application having been filed by the importer before the Settlement Commission. To my mind, the consequence of final order of settlement passed by the S....