Custom, Excise & Service Tax Tribunal
) Shri Chetan Kharey, Director vs The Commissioner Of Customs on 20 June, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - Court - I (Division Bench)
Date of hearing & decision: 20.06.2013
Stay Application Nos. 1298 to 1300/2012,
In
Customs Appeal Nos. 1822 to 1824/2012
1) Shri Chetan Kharey, Director
2) Shri Ashok Kharey, CEO
3) Smt. Seema Kharey, Director
M/s. Maxx Access Ltd. .Appellant
Versus
The Commissioner of Customs
Bangalore
.Respondents
Appearance:
Mr B. Venugopal, advocate for the appellants Ms Sabrina Cano, Superintendent (AR) for the respondent Coram:
Honble Mr. B.S.V. Murthy, Member (Technical) Honble Dr. D.M. Misra, Member (Judicial) MISC. ORDER Nos. ______ ____/2013 Order Per: B.S.V. Murthy In all the three cases whose stay applications are before us, the appeals have been dismissed on the ground that the appellants failed to deposit 50% of the penalty directed to be deposited for hearing the appeals correct.
2. The learned advocate submits that in this case the main appellant against whom offence case was made out for undervaluation before the Settlement Commission and the Settlement Commission accepted the application and the matter has been settled. He relies on the decision of the Tribunal in the case of S.K. Colombowala - [2007 (220) E.L.T. 492 (Tri.-Mum.)] to submit that once the case is settled against the main party, the case against all other parties to the offence case have to be treated as closed.
3. Learned DR would submit that this decision should not be applied to the present case. She submits that appellants are not merely abetting the undervaluation but actually are encouraging Indian importers to resort to undervaluation by providing two sets of invoices and participating in the undervaluation activity and this is not the first offence wherein the appellants were found involved in such an offence. Therefore she submits that the decision in the case of S.K. Colombowala should not be applied to the present case.
4. In his rejoinder the learned counsel would submit that the decision in the case of S.K. Colombowala was on a legal point and the question as to how the appellants were involved in the offence or whether there were earlier cases of the offence is not relevant.
5. We have considered the submissions made by both the sides. On going through the order of the Settlement Commission, we find that the Settlement Commission in the last paragraph has observed as under:
This order settles the case only against the applicant and co-applicants in this order and Revenue is at liberty to take appropriate action as per law against other noticees in the show-cause notice (supra).
In our opinion this observation made by the Settlement Commission in their order goes against the appellants prima facie and therefore at this stage it may not be appropriate to apply the decision in the case of S.K. Colombowala without considering all the relevant statutory provisions, the details and the order cited by the learned counsel and details considered by the Settlement Commission in the present case and all other aspects of the matter. Since the Commissioner (Appeals) has not gone into merit, in any case the matter has to be remanded. In this view of the matter we consider that it would be appropriate to grant waiver of pre-deposit and taken the appeals for final decision.
6. Since we have already taken a view that prima facie S.K. Colombowala decision cannot be applied to the facts of this case which are peculiar and stands in a different footing, appellants are required to be put to terms while remanding the matter. Accordingly the appellants are directed to deposit Rs. 1,00,000/- each (Rupees one lakh each) and report compliance to Commissioner (Appeals) within 6 weeks from today. The Commissioner (Appeals) after noting compliance, shall decide the matter afresh on merit after giving reasonable opportunity to the appellants to present their case. We make it clear that all issues are kept open.
(Pronounced and dictated in open Court)
(D.M. MISRA) (B.S.V. MURTHY)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
iss