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2019 (2) TMI 1625 - AT - CustomsRestoration of Appeal - assessee raised a preliminary objection on the ground that since there is an order of Settlement Commission qua the main Noticee and three other Co-noticees there cannot be the adjudication any further with respect to remaining co-noticees - HELD THAT - Before the Settlement Commission the main co-noticee made an appropriate declaration with respect to its liability. The Commission after accepting the said declaration passed the order under Section 19 (1) of Finance (II) Act 1998 directing the main co-noticee to pay an amount of 5, 50, 090/-. The said amount undisputedly stands paid. The immunity to the said co-noticee and 3 of his employees was given in view of the aforesaid acknowledgement of liability on their part. From the grounds of appeal also there is no other submission of the applicant - appellant which may be a submission on merits except the challenge to the jurisdiction. The decision of Mangli Impex Ltd. vs. Union of India 2016 (5) TMI 225 - DELHI HIGH COURT has been relied upon. The said decision has been stayed by Hon ble Supreme Court. Hence absence of any finding to that effect is not sufficient to hold the order dated 5th June 2018 as an order not on merits but inadvertently dismissing the appeal altogether. There is nothing which remains to still be adjudicated - the grounds mentioned in the application are not the grounds to seek the restoration. Application dismissed.
Issues: Application for recalling of Final Order, Adjudication based on Settlement Commission's order, Immunity from prosecution, Jurisdictional challenge
1. Application for Recalling of Final Order: The judgment deals with an application for recalling a Final Order dated 05.06.2018 and hearing the appeal on merits. The applicant argued that since there was an order of Settlement Commission regarding the main Noticee and three Co-noticees, further adjudication should not proceed for the remaining co-noticees. The appeal was inadvertently dismissed, and the applicant sought restoration for a proper hearing on merits. The Department contended that there was no misunderstanding on the date of the hearing and opposed the application, stating that there was no inadvertence in the previous order. 2. Adjudication Based on Settlement Commission's Order: The judgment highlighted that a show cause notice was issued in 2007 to 13 individuals, including the main Noticee and the appellant, regarding fake consignments and wrongful availment of customs duty exemptions. While some co-noticees went to the Settlement Commission, the appellant sought immunity from further prosecution similar to others. The order under challenge considered the appellant's argument on merit, not as a preliminary objection. The Settlement Commission's order directed the main co-noticee to pay a specified amount, which was paid, granting immunity to them and three employees. 3. Immunity from Prosecution: The judgment clarified that the Settlement proceedings and immunity granted did not apply to the appellant, who was penalized separately. The order under challenge was deemed to be based on merits, as the appellant's submissions did not raise any new points except a challenge to jurisdiction. The absence of any pending adjudication and the grounds mentioned in the application were found insufficient to warrant restoration of the appeal. 4. Jurisdictional Challenge: The judgment noted that the appellant's grounds of appeal mainly focused on challenging jurisdiction, citing a specific case decision. However, the court held that the decision cited had been stayed by the Supreme Court, and the grounds presented were not substantial for restoring the appeal. The application for restoration was ultimately dismissed based on the lack of new merit-based submissions and the existing adjudication on the matter. In conclusion, the judgment thoroughly analyzed the issues raised in the application for recalling the Final Order, the implications of the Settlement Commission's order on adjudication, the immunity from prosecution, and the jurisdictional challenges presented by the appellant. The decision ultimately dismissed the application for restoration, emphasizing the lack of substantial grounds for reconsideration.
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