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TMI Blog2016 (9) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 514 - CESTAT, MUMBAI] is relied upon, where it was held that, the case against all co-noticees comes to an end once the order of settlement is passed in respect of the person entitled to file an application before the Settlement Commission and therefore, penalty imposed upon the appellants cannot be sustained and is set aside. Appeal dismissed - decided against Revenue. - C/85867/2014 - A/89235/16/SMB - Dated:- 19-2-2016 - Shri C J Mathew, Member (Technical) Shri MK Sarangi, Dy. Commissioner (AR) for the appellant Shri B Shesha Gopalan, Advocate A. Sheerazi, Advocate for the respondent ORDER Consequent upon the review of order-in-order CAO no. 134/2013-14/CAC/CC(E)/YG/GR.VII dated 29th November 2013 of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viduals in the admitted cash transactions relating to the imports. The adjudicating authority also relied upon the decision of this Tribunal in SK Colombowala v. Commissioner of Customs (Import), Mumbai [2007 (220) ELT 492 Tri.-Mumbai)]. The relevant portion of the relied upon order, following reference to third Member owing to difference of opinion, was that : 26. (c) The case against all co-noticees comes to an end once the order of settlement is passed in respect of the person entitled to file an application before the Settlement Commission and therefore, penalty imposed upon the appellants cannot be sustained and is set aside. 4. The appeal of the Revenue contends that the adjudicating authority should instead, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nking the notices with the illicit import is secondary to the issue of continuance of proceedings.. 8. The decision of the Tribunal in re S K Colombowala was settled by reference to a third member with the majority holding, that co-noticees cannot be proceeded against once the main noticee has settled the demand before the Settlement Commission. The contrary decision, viz, that of the Tribunal in KI International has been pronounced by a division bench of the Tribunal. It is now well-settled that the decision emanating from reference to a third member on account of different of opinion has the same status as that of a Larger Bench. Therefore, it would appear that the Tribunal has no option but to follow the decision in re SK Colombowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 say that a person, who s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. Thus plea of these appellants are baseless and being misconceived are devoid of merit and they are liable to penalty under law for the unlawful act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the said decision of the Hon ble Supreme Court are entirely different from the facts of the instant case or the facts available in the case of S.K. Colombowala. The proceedings are under the Central Excise Act as regards imposition of penalty in terms of Rule 26 of Central Excise Rules. The question of obtaining any decree or order by mis-representing the facts of the case or by fraudulently representing the case, as was the case before the Hon ble Supreme Court, are not involved in the present appeal. While delivering the majority judgment, the majority Members have relied upon the decision of the Hon ble Supreme Court as also of the Tribunal, which were pari materia on facts and in law and analysed the provisions of Section 127. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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