2019 (1) TMI 1728

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....notice # DRI/AZU/SRU/B/INV-9(INT-05)/2016, dated 4-1-2018 issued by the Joint Director, DRI, Ahmedabad demanding Customs duty of Rs. 44,09,868 under Section 28(4), interest under Section 28AA and proposing to impose penalty under Section 114A of the Customs Act, 1962 ("the Act"). 2. On scrutiny of the applications it appeared that they were not maintainable, under provision of Section 127L of the Act, inasmuch as the applicant Maheshchandra Sharma had been penalized earlier in another case of the applicant. 3. Notice of even number and dated 28-12-2018 was therefore issued and both the applicants were called upon to explain why their applications should not be rejected in view of the bar contained in Section 127L of the Act.....

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....on of Maheshchandra Sharma is acute to face penalty equal to duty in the regular adjudication. • Therefore the penalty imposed by the Settlement Commission in its Order # 04/2018, dated 31-1-2018 on Maheshchandra Sharma in the earlier case of M/s. Anika Global Impex should not bar him, under Section 127L of the Act, from applying to the Settlement Commission in the present case. 5. It is a fact that Maheshchandra Sharma was imposed with a penalty in a case "M/s. Anika Global Impex F.No. 96/Cus/AG/2017" wherein the application for settlement was disposed of by an Order # 04/2018, dated 31-1-2018. The finding recorded in the order (vide paragraph # 7.5) as it concerns imposition of penalty on Maheshchandra Sharma is repro....

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....eshchandra Sharma-whether "de facto owner" or otherwise. The statements of Maheshchandra Sharma and also of his son Aditya Sharma (in M/s. Anika Global Impex case) were recorded under Section 108 of the Act and are admissible as evidence against them. It was not the case of Maheshchandra Sharma that these statements were ever retracted. 7. The findings of the Bench in the present case of M/s. Aditya International Trade Co. wherein Maheshchandra Sharma is also an applicant, in response to his representation-written and oral-are as under : Representation of the applicant (Maheshchandra Sharma, the proprietor of M/s. Aditya International Trade Co.) Findings in the Order # 04/2018, dated 31-1-2018 in the case of M/s. Anika Global ....

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....rded before the DRI were never retracted on any ground. So the statements, recorded under Section 108 of the Act stand as evidence against them. It was simply an arrangement of work between Aditya Sharma and Maheshchandra Sharma to save time and to avoid delay. Maheshchandra Sharma had nothing to do with the profit and loss of M/s. Anika Global Impex The Order # 4/2018, dated 31-1-2018 merely treated him as a person. The Bench took into account the particular role (undervaluation invoice found in the e-mail ID of Maheshchandra Sharma, etc.) of Maheshchandra Sharma while imposing penalty on him in his personal capacity. Section 127L of the Act takes into account the applicant's status merely as a person. So, if he was earlier penali....