Customs, Excise and Gold Tribunal - Delhi
Shri D.P. Kothari & C.P. Kothari vs C.C.E., Jaipur I on 20 March, 2001
Equivalent citations: 2001(135)ELT669(TRI-DEL)
ORDER K.K. Bhatia, Member (T)
1. The Addl. Commissioner of Central Excise, Jaipur vide his Order dt. 3.4.98 confirmed the duty of Rs.14,49,000/- on M/s. Om Metals & Minerals (P) Ltd., Kota under Section 11-A of the Central Excise Act, 1944 read with Rule 9(2) of the Central Excise rules, 1944. He also imposed a penalty of Rs.10,00,000/- on this party. He further imposed a penalty of Rs. 2,00,000/- each on Shri c.P. Kothari, Managing Director and Shri D.P. Kothari, Managing Director and Shri D.P. Kothari, Technical Director and Shri D.P. Kothari, Technical Director of the company under Rule 209-A of Central Excise Rules, 1944.
2. Shri D.P. Kothari and Shri C.P. Kothari filed appeals against the above Order of the Addl. Commissioner, but the same stood dismissed by Order dt. 8.10.99 passed by the Commissioner (Appeals), Jaipur.
3. The present are the second stage appeals filed by the above appellants. The appellants have submitted that in this case the main notice party viz., M/s. Om Metals & Minerals (P) Ltd., Kota had filed a declaration under the Kar Vivad Samadhan Scheme, 1998 and their matter stands fully and finally settled vide Order dt. 26.3.99 issued by the Designated Authority under Section 90(2) read with Section 91 of the Finance Act, 1998 under the Scheme. Shri A.K. Dey, Advocate appearing for the appellants contends that the present appellants are co-notices in this matter and in terms of the Removal of Difficulties Order issued under Section 97(1) of the Act by the Government, the imposition of fine or penalty cannot sustained against them since the principal notice has got the case settled under the Kar Vivad Samadhan Scheme. In this regard, he relied on the Tribunal decision in the case of Anil K. Arora and Ravi K. Arora vs. C.C.E. Mumbai III reported in 2000 (118) ELT 346 (T). Shri M.P. Singh, JDR for the respondent son the contrary states that the said Removal of Difficulties Order granting immunity to the co-notices from fine and penalty is applicable only if the declaration under KVSS is filed by the principal notice at the show cause notice stage. He submits that this immunity is not available to the co-notices where the proceedings have culminated in passing of final order leading to the imposition of penalty on the co-notice. It is therefore contended by the ld. JDR that since in this case, separate penalties are imposed on the present appellants by an order of the Addl. Commissioner, they are not entitled to immunity as claimed. For this, he says, the present appellants should have filed separate declarations and got the matter settled under the Scheme.
4. We have considered the submissions made before us by both the sides. It is observed that the issue under consideration is no more res integra, as the same has been settled by the decision of the Tribunal in the case of Anil K. Arora and Ravi K. Arora (supra) cited before us by the ld. Counsel for the appellants. The facts in the cited case are that the Commissioner by his order dt. 29.1.99 had demanded duty of Rs.22,09,378.40, imposed a penalty of Rs.23 lakhs and a redemption fine of Rs.10 lakhs on M/s. Spidermans Business Pvt. Ltd. He had also imposed penalties of Rs.5 lakhs on Ravi K. Arora and Rs.10 lakhs on Anil K. Arora. M/s. Spidermans Business Pvt. Ltd. filed a declaration under Kar Vivad Samadhan Scheme and the determination order was passed by the Designated Authority. The declarant deposited the determined amount which ended the settlement under Section 90 in favour of M/s. spidermans Business Pvt. Ltd. The Tribunal in this decision held that on settlement of the matter covered by the declaration, since the action on the adjudication order-in-appeal did not survive, the Stay Order and the appeal in respect of the co-notices also became infructuous. It is further observed that the proceedings against the co-notices will abate when the main notice has filed a declaration under the Kar Vivad Samadhan Scheme and it is accepted by the Department, as a result of which, the adjudication order does not survive in view of the full settlement under the Kar Vivad Samadhan Scheme. Consequently, any penalty imposed on the co-notices will also not survive. We observe that the same position is reiterated in the latest decision of the Tribunal in C.C.E. Mumbai-III vs. Shri Bhai Chand U. Doshi & Ors. - 2001 (43) RLT 176 (CEGAT-Del).
5. Following the legal position arrived at in the above decisions, we hold that since the action against the principal notice viz., M/s. Om Metal & Mineral Pvt. Ltd., Kota is ended in the settlement in favour of them under the Kar Vivad Samadhan Scheme, the penalties imposed on the appellants have also abated. Accordingly, the present appeals are infructuous and the same are accordingly, dismissed.
(Announced in the Court).