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TMI Blog2013 (9) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... ng charges, processing charges and count of yarn etc. 3. It is seen that show cause notice was issued to all the noticees concerned proposing confirmation of excess deemed Modvat credit as also for imposition of penalties. During the pendency of adjudication of show cause notice M/s. Sona Processors approached the Settlement Commissioner, who passed the Final Order No. A/559/CE/07-SC, dated 31-1-2007 directing M/s. Sona Processors to deposit the balance amount of excess deemed Modvat credit within a period of 30 days from that order along with simple interest of 10%. M/s. Sona Processors complied with the said order and deposited all the dues. Settlement Commissioner also granted immunity to M/s. Sona Processors from penalty and prosecution. 4. The original adjudicating authority while adjudicating the show cause notice observed the above fact of M/s. Sona Processors approaching the Settlement Commission and as such did not pass any orders against M/s. Sona Processors. However, he imposed penalty of Rs. 10 lakh on the appellant in terms of Rule 26. He also imposed penalty on the Managing Director of the appellant as also on their export executive and authorised signatory. 5. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, there was originally a difference of opinion between two Members. Such difference was referred to the Senior Vice-President and was settled in favour of the appellant. For better appreciation, I would like to reproduce the relevant paragraphs from the said order : "Per Archana Wadhwa, Member (Judicial) 2. After hearing the Ld. DR, we find that the Hon'ble Supreme Court in the UOI v. Onkar S. Kanwar [2002 (145) E.L.T. 266 (S.C.)], held that settlement of dispute by main declarant under Kar Vivad Samadha Scheme to operate as full and final settlement in respect of all other person upon whom show cause notice was served in respect of the same matter. Further, in the case of V. Abdul Rehman Musaliyar v. Commissioner [2001 (133) E.L.T. 145 (Tribunal)], it was observed that a better cannot be penalized more than the original importer. Similarly, in the case of D.P. Kothari v. Commissioner of Central Excise, Jaipur-I [2001 (135) E.L.T. 669 (Tri.-Del.)]. It was laid down that where principal noticee filed a declaration under Kar Vivad Samadhan Scheme and issue finally settled in favour of him, as a consequence, penalty imposed on co-noticee does not survive. 3. Ld. DR has submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as well as the co-noticees (including the appellants) stood finally settled and closed. The scheme of settlement does not contemplate a situation where a case is settled partly for some applicants and remains pending for others. Reading of the provision relating to settlement makes it clear that only an importer (specified category of person) can file an application for settlement of a case and that once such a case is admitted and settled, the entire case gets settled. (emphasis supplied). The provisions in Section 127J relating to conclusiveness of matters stated in the settlement order and bar against re-opening of any matter covered by such order in any proceedings is clearly indicative of the legislature's intention of complete settlement of a case qua all parties involved in that case. The provisions of Sec. 127E fortify view that once an application for settlement has been allowed to be proceeded with, the proper officer who exercises jurisdiction over the case ceases to have any jurisdiction "in relation to the case "and it would be therefore, incongruous to hold that such an officer would continue to have jurisdiction qua other co-noticees, for the reason that such an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30-11-2007, 6947/2007, dated 30-11-2007, 6944/07, dated 30-11-2007, 6948/2007, dated 30-11-2007, 6946/2007, dated 30-11-2007 and 7453/2007, dated 25-3-2008 that the importers covered by the said adjudications having settled their dispute before Settlement Commission and immunity from penalty and prosecution having been granted to them, the trader, broker and sub-broker appellants covered by those adjudications cannot be called upon to pay penalty out of same adjudication. Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath reported in (1994) 1 SCC 1 laid down the law that the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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