Sachin Dhall vs C.C. New Delhi (Tkd)

[Arising out of Order-In-Appeal No. 12/2014/AD/COMMR/ICD,TKD dated: 31.03.2014 passed by Commissioner of Customs-Tughlakabad (ND)]

For approval and signature:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Sachin Dhall ...Appellant

Vs.

C.C. New Delhi  (Tkd) Respondent

Appearance:

Ms. Reena Rawat, Advocate for the Appellants

Mr. R K Mishra, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing.01.06.2015

FINAL ORDER NO. 53244 /2015

Per S. K. Mohanty:

The brief facts of the case are that M/s India Craft filed two Bills of Entry being Nos. 4297381 & 4297386 both dated 8.8.2011 for clearance of miscellaneous goods such as Down Light, Ladies Purse, Shoes, Wall Light, Door Mat, Bags etc. Intelligence report disclosed that apart from the declared goods, some undeclared readymade garments and some branded goods have also been imported by the importer. On the basis of such intelligence report, the Customs Department proceeded against the importer and other concerned persons for imposition of penalty for the wrongful act and deed for illegal importation of goods. The present appellant Sh. Sachin Dhall is before this Tribunal, against whom penalty of Rs. 50,000/- and Rs. 25,000/- have been imposed under section 112(a) and section 114AA respectively of the Customs Act, 1962.

2. Ms. Reena Rawat, the Ld. Advocate for the appellant submits that the main importer along with other co-noticees on whom Show Cause proceedings were initiated, had approached the Settlement Commission for conclusion of the dispute arising out of the Show Cause Notice. The Commission vide Order No. F-1412-1415/Cus/2013-SC (PB) dated 2.9.2013 has settled the dispute by ordering deposit of the duty amount proposed in the SCN with interest, which the importer had paid as a consequence of the Settlement Commissions order. According to the Ld. Advocate, since the matter has been settled in favour of the importer and other co-noticees pursuant to the said order, calling upon the appellant to deposit the adjudged penalty amount is not proper and justified. To substantiate her above stand, the Ld. Advocate relies on the decision of the Tribunal in the case of S.K. Colombowala vs Commissioner of Customs (Import), Mumbai-reported in 2007 (220) ELT 492 (Tri. Mumbai) and Radiant Silk Mills (P) Ltd. vs CCE Jaipur reported in 2013 (288) ELT 311 (Tri.  Del).

3. Countering the above submissions of the appellant, the Ld. DR, Sh. R K Mishra, appearing for the Respondent submits that imposition of penalty in the facts and circumstances of the case is justified in view of the decision of Tribunal in the case of K.I. International -vs.- Commissioner of Customs, Chennai, reported in 2012 (282) ELT 67,

4. Heard both the sides and perused the records.

5. I find that consequent upon initiation of Show Cause proceedings against the importer along with the co-noticees, the importer M/s India Craft had filed the application for settlement of dispute on 17.01.2013 before the Customs and Central Excise Settlement Commission, New Delhi. The issue arising out of the dispute was settled by the Settlement Commission vide Final Order dated 02.09.2013, wherein the importer was directed to deposit customs duty along with penalty and the other co-noticees were absolved from payment of duty, fine and penalty amount proposed in the SCN. It is not in dispute that the matter arising out of the SCN dated 17.12.2012 has not been settled by the Settlement Commission, New Delhi.

6. I find that the issue arising out of the present appeal is no more res-integra in view of the decision of this Tribunal in the case of S.K. Colombowala (supra), wherein it has been held that the case against all co-noticees comes to an end once the order of settlement is passed in respect of the person entitled to file an application before the Settlement Commissioner, and therefore, penalty imposed upon the appellant cannot be sustained and is set aside.

7. Further, placing reliance on the said decision in the case of S.K. Colombowala (supra), this Tribunal in the case of Radiant Steel Mills (supra) has allowed the appeal in favour of the appellant therein. In the said order, the decision cited by the Ld. DR for the Revenue in the case of K.I. International Ltd. (supra) has been departed by the Tribunal, holding that the said decision has not taken into consideration the Tribunals decision passed in the case of S.K. Colombowala (supra). Thus, the submissions of the Ld. DR that K.I. Internationals case is applicable to the facts of the present case, is not sustainable.

8. In view of the above settled principle of law, I am of the considered opinion that once the issue has been settled by the Settlement Commissioner, the further proceedings should be closed and action cannot be taken against the co-noticees for recovery of penalty amount. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in open court)

(S.K. Mohanty)

Member(Judicial)

Neha

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