TaxTMI 
TaxTMI 
2019 (9) TMI 1113
X X X X Extracts X X X X
X X X X Extracts X X X X
....s under Section 112(a) of Customs Act, 1962. iv. I impose penalty of Rs. 2,00,000/- (Rupees Two Lakhs Only) upon M/s Rose Chemicals under Section 112(a) of Customs Act, 1962. v. I impose penalty of Rs. 1,00,000/- (Rupees One Lakhs Only) upon M/s Krishna Chemicals under Section 112(a) of Customs Act, 1962. vi. Since penalty has been under Section 112(a) of Customs Act, 1962 upon above mentioned proprietary firms, I refrain from imposing penalty under Section 112(a) ibid. I also do not impose penalty under Section 114A ibid upon firms vii. I impose penalty of Rs. 25,00,000/- (Rupees Twenty Five Lakhs Only) each upon Shri Jiten Shah and Kaushal Shah respectively under Section 114AA ibid. viii. I refrain from imposing penalty under Section 112(a)/ 114AA ibid upon M/s Vipul Pranal Doshi and M/s Standard Shipping Agency CHA's . ix. This order is passed without prejudice to any other action that were being taken under this or any other Act for time being in force." 1.2 Here we are concerned with the appeals filed by Shri Kaushal A Shah, Shri Jiten Shah, M/s Riya Chemicals, M/s Popular Chemicals & Co and M/s Krishna Chemicals. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....riginal No 190/2016-17/CC/NS-I/JNCH dtd 9.03.2017. • Order in Original No 78/2012/CAC/CC(I)/AB/VI dtd 3.12.2012. • In the following decisions it has been settled that once the main parties settle the case penalty cannot be imposed on the co-noticee's- • S K Colombowala [2007 (220) ELT 492 (T)] • Windoors (India) [2009 (246) ELT 345 (T)] • Mukesh Garg [2012 (278) ELT 303 (T)] • Vijay R Bohra [2010 (260) ELT 290 (T)] • Pearl Polymers Ltd [2008 (226) ELT 566 (T)] • Radiant Silk Mills (P) Ltd [2013 (288) ELT 311 (T)] • Virender Bansal [2015 (317) ELT 796 (T)] • Him Logistics [2017 (49) ELT 121 (T)] • It is also settled law that the penalties imposed on co-noticee could not have exceeded the penalty imposed on main noticee. {Shitala Prasad Sharma [2005 (183) ELT 21 (T)]} • Also penalty could not have been imposed on the firm as well as proprietor separately. 3.3 Arguing for the revenue learned authorized representative submitted- • Shri Jiten Shah who is proprietor of M/s Popular Chemicals and power of attorney ho....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... will apply only to the case of fraudulent exports to avail the benefit of export promotion scheme. Hon'ble Supreme Court has in case of Doypack Systems Pvt Ltd. [1988 SCC (2) 299] held as follows: "In our opinion Sections 3 and 4 of the Act interpreted either on their own language or along with sections 7 and 8, are not ambiguous; so documents are not relevant. It was further urged, that even if to construe the language is not clear and there is need to resort to aids of construction, it is clear that such aids can be either internal or external. Internal aids of construction are definitions, exceptions, explanations, fictions, deeming provisions, headings, marginal notes, preamble, provisos, punctuations, saving clauses, non-obstante clauses etc. The notings in the files of various officials do not fall in the category of internal aids for consideration. Dictionaries, earlier acts, history of legislation, Parliamentary history, parliamentary proceedings, state of law as it existed when the Act was passed, the mischief sought to be suppressed and the remedy sought to be advanced by the Act are external aids. Documents which have been required to be produced d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stage approach is necessary. Here there is no real doubt on an informed basis as we shall indicate hereafter about the real meaning of the enactment. There is therefore no question of resolving the doubt. The second stage does not arise here. This Court in Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. and another (supra) held that no one may speak for the Parliament and Parliament is never before the Court. After the Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. See also in this connection Dr. (Mrs.) Sushma Sharma and others v. State of Rajasthan and others (supra). The objects and purposes of the person who initiated the Bill are not admissible as aids to construction since it is impossible to contend that such purposes in the minds of some officials of the Government before the matter is discussed by the Cabinet, would at all be relevant. See in this connection State of West Bengal v. Union of India (supra) where this Court reiterated that the Statement of Objects and Reasons, accompanying when introduced in the Parliament cannot be used to determine the true meaning and effect of the subst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, the effect and consequence, or the spirit and reason of the law." The documents whose production is sought for are none of these. So in our opinion these are not relevant. We must further reiterate that the Members of Parliament had before them only the Bill. The notings of the various officials in the files were not before the Parliament. Therefore members could not be attributed with the knowledge of the notings in the files. Therefore, the notings made by the officials are not relevant. In this connection reliance may be placed on the principles of interpretation as enunciated by the Federal Court in Auckland Jute Co. Ltd. v. Tulsi Chandra Goswami, [1949] F.C.R. 201 at 244. It is trite saying that the interpreter of the statute must take note of the well known historical facts. In conventional language the interpreter must put himself in the arm chair of those who were passing the Act i.e. the Members of the Parliament. It is the collective will of the Parliament with which we are concerned. See in this connection the observations of the Federal Court in RM.AR.AR.R.M.AR. Umayhal Achi v. Lakshmi Achi and others, [1945] F.C.R. 1. We are therefore, of the opinion that the docume....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd prosecution. The Original Authority imposed penalties on the other noticees. It is to be noted that the case dealt with was one composite fraudulent act of misusing advance licence with fraudulent intent, in which certain individuals and CHA and its Director were also imposed with penalty. The Tribunal in S.K. Colombowala (supra) relied on the decision of the Hon'ble Supreme Court in Union of India v. Onkar S. Kanwar - 2002 (145) E.L.T. 266 (S.C.). 33. I have perused the said decision of the Hon'ble Supreme Court, para-14 of which clearly shows that the Hon'ble Supreme Court was specifically dealing with KVSS Scheme read with 8-12-1998 order of the Government and clarificatory note dated 16-12-1998 :- We have heard the parties. In our view, a "14. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame matter. Reliance on the said decision of the Hon'ble Supreme Court to hold that the settlement of case by the main noticee before the Settlement Commission in terms of Section 127 (J) of Customs Act, 1962 will conclude that the proceeding against all co-noticees is not legally sustainable. The Tribunal emphasised that the expression "case" refers to any proceedings under Customs Act or any other Act for assessment and collection of customs duty. 34. First of all, the reliance placed by the Tribunal in S.K. Colombowala (supra) on the decision of the Hon'ble Supreme Court in Onkar S. Kanwar (supra) is not appropriate as the issue dealt with is different in scope and application. The same is very clear from the findings of the Hon'ble Supreme Court reproduced above. Even otherwise, the term "co-noticee" cannot be interpreted in such a manner that all the persons, who received same show cause notice in a combined investigation, will automatically deemed to have been involved in one single case only. Such inference will be factually incorrect in many cases. It is not in-frequent that the investigations are conducted against many assessees and other parties in a combined ope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alty set aside on that ground alone. The merits of the case against the appellants are to be examined separately. 35. Section 32E of the Central Excise Act, 1944 deals with application for settlement of cases before the Settlement Commission. Section 31(c) defines the scope of term "case" which means any proceedings under this Act or any other Act for the levy, assessment and collection of excise duty pending before an Adjudicating Authority on the date, on which application under sub-Section (1) of Section 32E is made. As already noted, that the proceedings against the appellants are for imposing penalties for various contraventions of the provisions of Central Excise Law. It is not for assessment of duty payable by them. In other words, without there being a case of any short payment or non-payment by the main noticee in the present case, a case against the appellant will stand on its own, based on the allegations made. The merit of the allegations are to be decided in these appeals. To say that all the allegations against various parties in a single notice will abate once the main party gets matter settled, is not applicable in cases where there are distinct violations ....