2007 (7) TMI 514 - AT - Customs

Settlement of case and Kar Vivadh Samadhan (KVS) Scheme - Distinction between - Penalty - Difference of Opinion - Whether the provisions relating to Settlement of cases under the Customs Act can be considered to be identical to Kar Vivadh Samadhan Scheme justifying invocation of case laws under the Kar Vivadh Samadhan Scheme? - majority order.

Summary

Issues Involved:
1. Imposition of penalties under Section 112(a) and 112(b) of the Customs Act, 1962.
2. Settlement of the dispute by the main noticee in the Settlement Commission.
3. Applicability of the principle that co-accused cannot be penalized more than the main accused.
4. Distinction between the Kar Vivad Samadhan Scheme (KVSS) and the Settlement Commission mechanism.
5. Determination of the main role in the fraudulent activities.
6. Jurisdiction and conclusiveness of the Settlement Commission's order.

Detailed Analysis:

1. Imposition of Penalties:
The Commissioner of Customs, Mumbai, imposed penalties on the appellants under Section 112(a) and 112(b) of the Customs Act, 1962, for aiding and abetting M/s. Amrit Laxmi Machine Works in duty-free imports against duplicate advance licenses.

2. Settlement by Main Noticee:
M/s. Amrit Laxmi Machine Works settled the dispute with the Settlement Commission by paying Rs. 15,94,565/- along with 10% interest. The Settlement Commission granted immunity from fine, penalty, and prosecution to the main noticee.

3. Principle of Co-accused Penalty:
The appellants argued that no penalty should be imposed on them since the main offender was granted immunity. The Tribunal referenced several cases, including UOI v. Onkar S. Kanwar and V. Abdul Rehman Musaliyar, which supported the principle that co-accused should not face higher penalties than the main accused.

4. Distinction between KVSS and Settlement Commission:
The Tribunal noted the distinction between the KVSS and the Settlement Commission mechanism. The KVSS is a one-time scheme, while the Settlement Commission is a continuous mechanism. However, the principle that co-accused should not be penalized more than the main accused was considered applicable in both contexts.

5. Determination of Main Role in Fraud:
The Commissioner found that M/s. Amrit Laxmi Machine Works acted primarily as license lenders, with the major fraudulent activities carried out by Ashwin Mehta of Nippon Bearings Pvt. Ltd. and Manharlal H. Vora of Shalin Bearings Corporation. The Tribunal's decision in Shitala Prasad Sharma v. Commissioner was distinguished, as M/s. Amrit Laxmi Machine Works was not considered the main accused.

6. Jurisdiction and Conclusiveness of Settlement Commission's Order:
The Tribunal emphasized that once the Settlement Commission settles a case, it has exclusive jurisdiction, and the case is conclusively settled. The order of the Settlement Commission is binding and bars reopening the matter in any other proceedings under the Customs Act.

Conclusion:
The majority decision endorsed the view that the penalties on the appellants should be set aside because the main noticee had settled the case with the Settlement Commission. The Tribunal concluded that the case against all co-noticees ends once the Settlement Commission passes its order. Consequently, the impugned order imposing penalties on the appellants was set aside, and all appeals were allowed with consequential relief.