Bombay High Court
Yogesh Korani vs Union Of India (Uoi) And Ors. on 8 October, 2002
Equivalent citations: 2003(2)BOMCR122, 2003(159)ELT3(BOM), 2003(1)MHLJ916
Author: J.P. Devadhar
Bench: V.C. Daga, J.P. Devadhar
JUDGMENT J.P. Devadhar, J.
1. In this petition, the petitioner is challenging the order of the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench (CEGAT), Mumbai dated 11th March, 2002 insofar as it purports to confirm the penalty of Rs. 15,00,000/= levied upon the petitioner by the Commissioner of Customs, Mumbai under the order in original dated 11-9-1995.
2. The facts relevant for deciding the issues raised in the present petition are as follows:
3. Petitioner is a Proprietor of M/s Mahavir Export and Import Company and inter alia carries on business of buying and selling imported and indigenous goods on brokerage/commission/premium.
4. M/s Choice Laboratories, a Partnership firm had obtained two advance licences from the Licensing authority which permitted them to import specified quantity of raw materials duty free with the corresponding export obligation. The said licences were with actual user conditions and could not be sold to third parties and the duty free goods imported under the said Licences were required to be used in the manufacture of export items. Investigations carried out by the Customs Authorities revealed that M/s Choice Laboratories had illegally sold glycerine and Sodium Lauryl Sulphate (SLS) imported and cleared without payment of duty under the aforesaid advance licences in the open market to various parties. The investigation carried out by the Customs Authorities further revealed that one such advance licence obtained by M/s Choice Laboratories was sold to the petitioner on 25% premium and thereafter 1998 Kgs. of peppermint oil was cleared duty free on the basis of the aforesaid advance licence and sold to third parties. It was also noticed that the petitioner had sold the said advance licence to M/s Ratilal Hemraj for a premium of 35% and a consignment of 2.22 MTs. of Clove Bud oil was cleared duty free on the basis of the said advance licence and sold to M/s Colgate Palmolive Ltd. During the course of investigation, statement of various persons, including the petitioner were recorded under Section 108 of the Customs Act, 1962 ('Act' for short) and all the aforesaid goods cleared duty free were seized in the hands of the respective parties.
5. Thereafter, a show cause notice dated 14th February, 1984 was issued against M/s Choice Laboratories and several Ors., including the petitioner herein, calling upon them to show cause as to why:
(i) seized 108 M.Ts. of glycerine and 7.2 M.Ts. of S.L.S. sold by M/s Choice Laboratories to different parties in the open market should not be confiscated.
(ii) Seized 13 drums of peppermint oil, weighing 1998 Kgs. and Clove Bud oil, weighing 2.220 M.Ts. imported and cleared duty free on the basis of fabricated documents should not be confiscated.
(iii) Penalty should not be imposed on each of them.
6. After hearing the parties, the order in original was passed by the Commissioner of Customs on 11th September, 1995 ordering the confiscation of seized 108 M.Ts. of glycerine, 7.2 M.Ts. S.L.S., 2.2 M.Ts. of Clove Bud oil and 1998 Kgs. of peppermint oil. The Commissioner of Customs further ordered recovery of customs duty on those confiscated goods. The Commissioner of Customs also levied penalty of Rs. 5,00,000/= on M/s Choice Laboratories, Rs. 1,00,000/ on M/s Fresh Laboratories, Rs. l,00,000/= towards fine in lieu of confiscation and penalty of Rs. l,00,000/= on M/s Ratilal Hemraj. The Commissioner of Customs also imposed heavy penalty of Rs. 15,00,000/= on the petitioner under Section 112(a) and (b) of the Customs Act considering the fact that the petitioners was the central figure in all these transactions and that he was concerned with import of goods valued at approximately Twenty-five lakhs on the basis of fraudulent documents.
7. Being aggrieved by the aforesaid order, all the four parties, namely; M/s Choice Laboratories, M/s Fresh Laboratories, M/s Ratilal Hemraj and the petitioner herein filed appeals before CEGAT, Mumbai, During the pendency of said appeal before CEGAT. M/s Choice Laboratories filed declaration under Kar Vivad Samadhan Scheme, 1998 ('K.V.S.S.' in short) admitting their liability only in respect of confiscated glycerine, S.L.S. and peppermint oil (but not on Clove Bud Oil) and paid customs duty thereof, as contemplated under K.V.S.S. The said declaration was accepted by the authorities and requisite certificate was issued in favour of M/s Choice Laboratories under K.V.S.S.
8. When all the aforesaid four appeals were taken up for final hearing by CEGAT, M/s Choice Laboratories produced the aforesaid certificate issued under K.V.S.S. and on the basis of the said certificate, the Tribunal by its common order dated 11th March, 2002 dismissed the appeal of M/s Choice Laboratories as withdrawn. By the said order dated 11th March, 2002, CEGAT confirmed the liability of the customs duty on Clove Bud Oil and also redemption fine and personal penalty levied on M/s Ratilal Hemraj. By the said order, appeal filed by the petitioner was also dismissed by holding that the benefit of K.V.S.S. granted to M/s Choice Laboratories will not be available to the petitioner, as his role continued even after the role of M/s Choice Laboratories stopped. Challenging the said order, this petition has been filed.
9. In this writ petition, we are only concerned with the legality of the order of CEGAT insofar as it confirms the penalty of Rs. 15,00,000/= imposed by the Commissioner of Customs upon Shri Yogesh Korani, the petitioner herein.
10. Mr. Bulchandani, learned Counsel appearing on behalf of the petitioners broadly submitted twofold arguments. Firstly, according to him, when the principle noticee M/s Choice Laboratories was granted the benefit under K.V.S.S., the petitioner, who is admittedly a co-noticee is entitled to the benefit of K.V.S.S. and the Tribunal was wrong in denying the said benefit to the petitioner. By relying upon the various trade notices issued by the several Commissionerates and also by relying upon various decisions, including the decision of this Court and the Apex Court, he submitted that the proceedings against co-noticee will abate when the declaration of the main noticee is accepted under K.V.S.S. Secondly, as an alternative argument, he submitted that the penalty of Rs. 15,00,000/= imposed upon the petitioner is too excessive and totally disproportionate as compared to the penalty levied upon other noticees.
11. As regards the first submission, we entirely agree with Mr. Bulchandani that ordinarily when a declaration made by the main noticee under K.V.S.S. is accepted, the proceeding against all the co-noticees will abate. But the question that arises for our consideration in the present case is, when the order in original is a composite order and the liability fastened upon the principal noticee and the co-noticees are based on separate, distinct and independent causes of action and the principle noticee settles only part of the tax arrears arising out of composite order, then whether the benefit of K.V.S.S, granted to the principal noticee will be available to the co-noticee? In other words, the question to be considered is in a composite order, where the liability of the main noticee and the co-noticee arise under two independent causes of action and the main noticee settles the dispute under one cause of action, then whether the co-noticee, who is penalised for the other cause of action for which there is no settlement of tax arrears can claim immunity on the basis of declaration made by the main noticee ?
12. In the instant case, perusal of the show cause notice, the adjudication order passed by the Commissioner of Customs and the order of CEGAT, show that the liability fastened upon M/s Choice Laboratories and the petitioner are based totally on distinct, separate and different causes of action as can be seen from the following:--
a) It is held that M/s Choice Laboratories illegally sold in the open market 108.5 M.Ts. glycerine and 7.2 M.Ts. of S.L.S. imported duty free under advance licence granted to them knowing fully well that the said goods could not be sold in the open market.
b) M/s Choice Laboratories illegally sold to the petitioner one advance licence at a premium of 25%.
c) On purchase of the said advance licence, the petitioner got prepared fictitious documents of High Seas Sale allegedly between M/s Fresh Laboratories and M/s Choice Laboratories and cleared 1998 Kgs. of peppermint oil without payment of duty by utilising the advance licence purchased by him from M/s Choice Laboratories. The petitioner has admitted in his statement recorded under Section 108 of the Customs Act (page 34 of the compilation) that infact he had negotiated for import of 1998 Kgs. of peppermint oil in the name of M/s Fresh Laboratories but on purchasing advance licence from M/s Choice Laboratories, he got prepared bogus documents of High Seas Sale between M/s Fresh Laboratories and M/s Choice Laboratories so as to clear 1998 Kgs. of peppermint oil imported by M/s Fresh Laboratories in the name of M/s Choice Laboratories without payment of duty. The petitioner even admitted (page 34 of the compilation) that the alleged High Seas Sale contract was prepared by him without the consent of the respective parties and that on the said High Seas Sale contract, he had signed for M/s Fresh Laboratories and his employee Shri. Ramesh Shivaraman had signed for M/s Choice Laboratories. After clearance the petitioners sold 1998 Kgs. of peppermint oil to M/s D. D. Shah Fragrances Pvt. Ltd. and M/s Indian Flavours and Fragrances Pvt. Ltd. The Commissioner of Customs has further held that when the investigations started and the Customs officers reached M/s Choice Laboratories and Ashwin Patel, Partner of M/s Choice Laboratories, they were not aware of any imports being made by the petitioner in respect of the advance licence sold by them to the petitioner. The contention of M/s Choice Laboratories to the contrary that they had entrusted the work of clearing the consignment of peppermint oil to the petitioner has been disbelieved and has been held to be an afterthought (page 131 of the compilation).
d) The advance licence of M/s Choice Laboratories purchased by the petitioner was sold by him to M/s Ratilal - Hemraj at 35% premium. M/s Ratilal Hemraj had also placed an order for import of 2.2 M.Ts. of Clove Bud oil and in the ordinary course, M/s Ratilal Hemraj would have been required to clear the said Clove Bud oil on payment of duty. With a view to facilitate the clearance under the said advance licence, the petitioner executed a fictitious High Seas Sale contract allegedly between M/s Ratilal Hemraj and M/s Choice Laboratories. The petitioner has confirmed (page 34 of the compilation) that the High Seas Sale contract for sale of Clove Bud Oil was not signed by any of the partners or the employee of M/s Choice Laboratories but the same was got signed by him by one of his employee namely Shri. Ramesh Shivaraman without authority from M/s Choice Laboratories. Mr. Ashwin Patel, partner of M/s Choice Laboratories had also confirmed that they have not made any payment for buying Clove Bud oil on High Seas Sale basis from M/s Ratilal Hemraj and that they had not entered into any High Seas sale/purchase contract with M/s Ratilal Hemraj. Thus, on account of the fraudulent document executed by the petitioner, 2.2 M.Ts. of Clove Bud oil were cleared duty free by utilising advance licence of M/s Choice Laboratories. The said goods were subsequently sold to Colgate Palmolive Ltd.
13. Thus, from the adjudication order of the Commissioner of Customs, it is evident that the illegal sale of glycerine and S.L.S. was done exclusively by M/s Choice Laboratories and the petitioner was not concerned with it. After the sale of advance licence by M/s Choice Laboratories to the petitioner, clearance of peppermint oil and Clove Bud oil were obtained by the petitioner by producing fictitious, fraudulent and bogus High Seas Sale contract and M/s Choice Laboratories had no hand in such fraudulent clearances. The claim of M/s Choice Laboratories that they had authorised the petitioners to import peppermint oil has been disbelieved and held to be an afterthought. In any event, admittedly, M/s Choice Laboratories were not concerned with the import of Clove Bud oil. With these findings, the Commissioner of Customs ordered confiscation of 108.5 M.Ts. of glycerine and 7.2 M.Ts. of S.L.S. and ordered M/s Choice Laboratories to pay the customs duty in respect of the same. As regards the peppermint oil is concerned, even though M/s Choice Laboratories were not party to its clearance on the basis of fraudulent and bogus High Seas Sale contract, since the clearance of 1998 Kgs. of peppermint oil was claimed to have been imported by of M/s Choice Laboratories, they were given an option to pay redemption fine of Rs. 2,00,000/=. M/s Choice Laboratories were also levied penalty of Rs. 5,00,000/=. The Commissioner of Customs levied heavy penalty of Rs. 15,00,000/= upon the petitioner on account of his involvement in creating fictitious, and bogus High Seas Sale agreements and clearing 1998 Kgs. of peppermint oil and 2.2 M.Ts. of Clove Bud oil without payment, of duty by utilising the advance licence of M/s Choice Laboratories.
14. To sum up, as per the adjudication order, the customs duty on glycerine, S.L.S. and peppermint oil was payable by M/s Choice Laboratories and customs duty on Clove Bud oil was payable by M/s Ratilal Hemraj. Penalty of Rs. 15,00,000/= was imposed upon the petitioner as he was instrumental in the clearance of peppermint oil and Clove Bud oil by executing fictitious and bogus High Sea Sale Contracts. Thus, from the adjudication order, it is apparent that the liability fastened upon M/s Choice Laboratories and petitioner are based on totally different and distinct causes of actions.
15. There is a clear admission of the petitioner in his statement recorded under Section 108 of the Customs Act to the effect that two High Seas Sale agreement were prepared by him, one allegedly between M/s Fresh Laboratories and M/s Choice Laboratories and another between M/s Ratilal Hemraj and M/s Choice Laboratories. None of these parties had consented or had any knowledge about the execution of these High Sea Sale Contracts. The petitioner was solely responsible for executing bogus and fictitious documents and M/s Choice Laboratories, were not party to such fraudulent action. Therefore, although both M/s Choice Laboratories and the petitioner were party to the illegal sale and purchase of advance licence, heavy penalty of Rs. 15 lakhs on the petitioner (as compared to Rs. 5 lakhs on M/s Choice Laboratories) was justified because of his act of executing bogus and fictitious documents. Thus, it is clear that the liability fastened upon the petitioner and M/s Choice Laboratories are based on totally independent and distinct causes of actions and they are neither interconnected nor arise out of a single cause of action. Since the importation of all the goods were made under the advance licence granted to M/s Choice Laboratories, they were made as principal noticee in the show cause notice and all other parties, including the petitioner, were added as co-noticees. The Commissioner of Customs has levied heavy penalty of Rs. 15,00,000/= upon the petitioner because the petitioner in spite of being a qualified Chartered Accountant, had shown contemptuous disregard for law and indulged in sale and purchase of non transferable licence and goods for greed to earn money and more than that in seeking clearance of peppermint oil and Clove Bud oil, the petitioner has gone to the extent of creating fictitious documents of High Seas Sale and signing documents on behalf of M/s Fresh Laboratories and M/s Choice Laboratories as Director/partner, when he was not even an office bearer or representative of those two entities. The petitioner has been severely punished and no leniency has been shown for his mala fide conduct and contemptuous disregard for law.
16. It is pertinent to note that under Section 88(f)(ii) of the K.V.S.S., settlement is available only on payment of fifty percent tax arrears due and payable on the date of making declaration under Section 88 of the K.V.S.S. In the present case, the Commissioner of Customs by his order dated 11-9-1995 has demanded customs duty on the imported glycerine, SLS, peppermint oil and Clove Bud oil which were cleared duty free under the advance licence granted to M/s Choice laboratories. In the declaration filed under K.V.S.S., M/s Choice laboratories paid 50% of customs duty due and payable on glycerine, SLS, and peppermint oil. No declaration was filed in respect of Clove Bud oil because, according to M/s Choice Laboratories, they were not concerned with the importation of Clove Bud oil. As there is no settlement in respect of the duty payable on Clove Bud oil, the petitioner cannot claim that the settlement effected on glycerine, SLS and peppermint oil will be applicable to Clove Bud oil also. Heavy penalty was imposed upon the petitioner because of his involvement in obtaining clearance of peppermint oil and Clove Bud oil on the basis of fictitious and bogus documents. Since the tax arrears due and payable on Clove Bud oil has not been settled by M/s Choice Laboratories, the question of the petitioner seeking immunity on the basis of immunity granted to M/s Choice Laboratories does not arise at all. Under the circumstances, we are of the opinion that the Tribunal was justified in holding that the benefit of K.V.S.S. availed of by M/s Choice Laboratories cannot be extended to the petitioner.
17. The provisions of K.V.S.S. and the trade notices issued by various Commissionerate clearly show that the immunity to the co-noticees are available only when settlement offered by the principal noticee and the act of the co-noticee pertain to the same matter and 50% of the tax arrears that is due is paid. In other words, where the principal noticee gets a case settled under K.V.S.S., it will provide immunity to all the co-noticees, provided the issues raised in the show cause notice/adjudication order pertain to the same matter. The word "co-noticee" will have to be understood in the sense of co-obligant, though it is loosely used in the trade notices as co-noticee. The concept of co-noticee contemplates an indivisible act of principal noticee giving rise to the liability on other noticees. In other words, if the liability of other noticees is flowing from distinct acts, then they cannot be termed as co-noticees. If there are multiple causes of action and the demand raised against the principal noticee and the co-noticee are based on separate and distinct causes of action, then the benefit of K.V.S.S. availed by the principal noticee will not be available to such co-noticees.
18. Kar Vivad Samadhan Scheme, 1998 was announced by the Government basically on account of considerable revenue being locked up in a large number of litigations pending at different levels for a long period of time. Therefore, with a view to declog the system and enable the Government to realise the reasonable amount due to it much earlier, the said scheme was announced. K.V.S.S. does not define as to who is a co-noticee. However, from the provisions of the Scheme read as a whole and the trade notices issued by various Commissionerates, it becomes evident that where for the irregularities committed by the principal noticee, action is also sought to be taken against the Director, Office bearer, employees, supplier, etc. and the principal noticee settles the dispute under. K.V.S.S, then, fine and penalty proposed/levied against all co-noticees shall abate. In the present case, after the sale of advance licence to the petitioner at a premium of 25%. M/s Choice Laboratories were not concerned and were not even having any knowledge about the goods being cleared under said licence. The petitioner has been penalised for the misdeeds committed by him independently with which M/s Choice Laboratories were not concerned at all. Moreover, M/s Choice Laboratories have not filed declaration in respect of Clove Bud Oil fraudulently cleared by the petitioner. Thus, the liability of duty and penalty fixed on M/s Choice Laboratories was basically on account of illegal sale of imported glycerine and S.L.S. in the open market (with which the petitioner was not concerned) and heavy penalty was levied upon the petitioner on account of his fabricating bogus High Sea Sale Contracts and importing peppermint oil and Clove Bud oil (with which M/s Choice Laboratories were not concerned). Thus, it is abundantly clear that the penalty levied upon M/s Choice Laboratories and the petitioner are based on totally different and distinct causes of action. Therefore, by no stretch of imagination, the penalty levied upon the petitioner and M/s Choice Laboratories can be said to arise from the same matter or same cause of action.
19. Heavy reliance was placed by Mr. Bulchandani on the decision of the Kerala High Court dated 7-3-2000 in the case of Sri T. K. Thomas v. Union of India and Ors., O. P. No. 1633 of 1999 wherein it was held that when the declaration of the Company which was a principal noticee was accepted under K.V.S.S. 1998, then, the director-co-noticee (petitioner therein) is entitled to the benefits of the order under K.V.S.S. and no action can be taken against the petitioner therein, in our opinion, the said decision of the Kerala High Court is wholly distinguishable on facts. In that case, the show cause notice was issued against the Company and its Directors and on adjudication, penalty was levied on them. On appeal by the Company and the Directors, the Tribunal by a common order directed that a sum of Rs. 50,00,000/= be deposited by Company and on such deposit being made, balance duty and penalty imposed on the Company and Officers, including the petitioner therein shall stand waived and recovery thereof stayed. Thereafter, the Company filed a declaration under K.V.S.S. 1998 which was accepted but that benefit was denied to the petitioner on the ground that the benefit of the scheme is given only to those co-noticees against whom the adjudication is not over and the show cause notice is still pending. On a writ, it was held that when the show cause notice against the co-noticee was adjudicated but appeal was pending, such co-noticee is entitled to the benefit granted to the principal noticee under K.V.S.S. in the present case, the facts are entirely different. The benefit of K.V.S.S. granted to M/s Choice Laboratories is denied to the petitioner because firstly, the tax arrears due and payable on confiscated Clove Bud oil has not been settled by the main noticee under K.V.S.S. and secondly, the penalty levied upon the main noticee and the petitioner arise from separate, distinct and independent causes of action. Therefore, in the absence of settlement of tax arrears due and payable on Clove Bud oil, the penalty levied upon the petitioner (inter alia for illegal clearance of Clove Bud oil) cannot be said to be covered under K.V.S.S.
20. Mr. Bulchandani brought to our notice that the above decision of the Kerala High Court was carried in appeal and the Apex Court by its Judgment dated 27-9-2002 in Civil Appeal No. 6260-6265 of 2000 Union of India v. Onkar S. Kanwar and Ors. has upheld the decision of the Kerala High Court. Relying upon the said decision of the Apex Court, Mr. Bulchandani vehemently and forcefully contended that the case of the petitioner is squarely covered by the said decision of the Apex Court and the petitioner is entitled to succeed on the basis of the said decision. In our opinion, as stated above, the decision of the Apex Court is wholly distinguishable on facts because, firstly, in that case the main noticee had paid fifty percent of the entire tax arrears; whereas in the instant case, the main noticee has not paid tax arrears payable on Clove Bud oil. Thus, in the case before the Apex Court, there was total settlement of tax arrears whereas in the present case, there is only partial settlement. Secondly, in that case the Apex Court after analysing the provisions of K.V.S.S., 1998 and K.V.S.S. (Removal of Difficulties) order, held as follows:--
"In our view a 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."
From the aforesaid ratio laid down by the Apex Court, it is clear that only when the tax arrear arises from the same matter, then the declaration made by the principle noticee will cover all other persons against whom show cause notice has been issued, in the instant case, heavy penalty of Rs. 15,00,000/; has been levied upon the petitioner on account of his involvement in fabricating bogus documents with which the main noticee M/s Choice Laboratories was not concerned at all. Therefore, when the penalty imposed upon the main noticee and the co-noticee arise from distinct and separate causes of action, merely because a common show cause notice has been issued, it cannot be said that the partial declaration/settlement made by the main noticee will be applicable to the petitioner. In the light of the aforesaid ratio laid down by the Apex Court, the petitioner herein cannot succeed because, firstly, there is no-total settlement and secondly, the penalty levied upon the main noticee and the petitioner, do not arise from the same matter but arise from different causes of action. Mr. Bulchandani drew our attention to the ratio laid down by the Apex Court in the above case to the effect that if two views are possible, then the view which is in favour of the assessee must be adopted, in our opinion, in the instant case where there is only partial settlement and the penalty levied upon the main noticee and the petitioner are based on separate causes of action, the only view that can be taken in the instant case, is that the settlement of the main noticee will not be available to the petitioner.
21. Mr. Bulchandani then relied upon the unreported decision of this Court dated 22-2-2000 in the case Gaurang Mehta v. Union of India, W.P. No. 1339 of 1999 and the subsequent implementation order passed by the Tribunal in that case reported in (2000(122) E.L.T. 853 Tribunal). From the aforesaid order of this Court and the Tribunal, it can be seen that in that case, the Commissioner of Customs had confirmed the demand of Rs. 2,03,11,672/ against M/s WIMCO Ltd. and imposed penalty of Rs. 2 crores on M/s WIMCO, penalty of Rs. 1 crore on Shri Jatia., Vice Chairman WIMCO and Rs. 50 lakhs on Gaurang Mehta. On appeal, the Tribunal directed the deposits of varying amounts as precondition for hearing appeals. Thereafter, WIMCO and Mr. Jatia filed declaration under K.V.S.S. which was accepted. When Gaurang Mehta moved Tribunal seeking modification, the Tribunal reduced the pre-deposit from Rs. 20 lakhs to Rs. 10 lakhs. On Writ, this Court following the Trade notices issued by the department held that when a declaration of the main noticee under K.V.S.S. is accepted, the proceedings against Gaurang Mehta, who is a co-noticee will abate. Thereupon, the Tribunal in compliance of the directions of this Court quashed the proceedings against Gaurang Mehta. The decision of this Court in the case of Gaurang Mehta does not help the case of the petitioner herein, because in that case, the main noticee viz. WIMCO had accepted the entire demand confirmed by the Commissioner of Customs; whereas in the present case, M/s Choice Laboratories had accepted the duty liability in respect of glycerine SLS and peppermint oil only and no declaration was filed in respect of the Clove Bud oil and hence the aforesaid decision is not applicable to the case of petitioner. We were informed that the duty liability on Clove Bud oil, which discharged by M/s Ratilal Hemraj and admittedly neither M/s Choice Laboratories nor M/s Ratilal Hemraj have filed declaration under K.V.S.S. in respect of the duty payable on Clove Bud oil, which was fraudulently cleared by the petitioner without payment of duty by producing bogus High Seas Sale contract and the advance licence of M/s Choice Laboratories. Under the circumstances the aforesaid decision of this Court does not help the case of the petitioner.
22. Once it is held that the penalty levied upon M/s Choice Laboratories and the petitioner are based on independent and distinct causes of action and there is no settlement in respect of imported Clove Bud oil with which the petitioner is concerned, then the alternative submission of Mr. Bulchandani that the levy of Penalty of Rs. 15,00,000/- is excessive and harsh, loses credibility. In the facts of this case, the petitioner, a Chartered Accountant, has indulged in fabricating bogus documents and went to the extent of creating and signing the document on behalf of M/s Fresh Laboratories and M/s Choice Laboratories as their Director/partner, when he is not even an office bearer of those two entities. This is a serious offence and the authorities below were justified in showing no leniency upon the petitioner. The petitioner was solely responsible for executing fictitious and bogus High Sea Sale Contract and none other parties to the show cause notice were involved in that act. In the instant case, although the customs duly ordered to be recovered on goods were cleared under a common advance licence granted to M/s Choice Laboratories the penalty levied upon M/s Choice Laboratories and the petitioner arise from different causes of action. The liability to pay penalty is not joint but several. The offence committed by the petitioner is totally independent and far more serious than the acts of the principle noticee and other persons involved and hence the case of the petitioner cannot be considered on par with the main noticee. Accordingly, heavy penalty levied upon the petitioner is justified and cannot be said to be harsh or excessive.
23. The Apex Court in the case of Swam Singh and Anr. v. State of Punjab and Ors. , held that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A Writ of certiorari can be issued only in exercise of supervisory jurisdiction which is different from appellate jurisdiction and this means that the findings of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence cannot be re-opened or questioned in writ proceedings. What kind of error apparent on the face of record which can be challenged has been explained in the case of Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale , wherein it was observed that:--
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record."
The purpose of Writ is not to take the place of a Writ of error or appeal but to cause the record of the inferior Court to be brought up for inspection, in order that reviewing Court may decide from the face of the record whether the inferior Court has exceeded its jurisdiction or has not proceeded according to the essential requirements of law. In Biswabahan v. Gopal Chandra , it is held that the Writ of Certiorari is a discretionary remedy, which cannot be invoked as a matter of right and it has to be granted or denied, according to the circumstances of each particular case, as the ends of Justice may require in accordance with sound public policy. Thus, taking overall view of the matter and looking to the conduct of the petitioner, who indulged in the entire transaction, as sketched hereinabove, we do not see any reasons to interfere with the order passed by the authorities below.
24. Accordingly, the petition is dismissed with no order as to costs.
25. At this stage, Mr. Bulchandani seeks stay of the recovery of the penalty amount for 8 weeks. The request is accepted. The respondents are directed not to recover the penalty amount of Rs. 15,00,000/= from the petitioner for a period of 8 weeks from today.