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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 ..... ppeal before the Tribunal. 2. Proceedings were initiated against M/s Nitco Limited and others for alleged evasion of Customs duty by mis-declaration of description/quantity and value of natural marble blocks and slabs imported from Italy, Turkey and Spain and artificial marble tiles and vitrified tiles imported from China. While these proceedings were pending, the importer, along with 20 other noticees, approached the Settlement Commission of Customs and Central Excise in accordance with the provisions of section 127B of Customs Act, 1962. Consequently, proceedings under sections 111 and 112 of Customs Act, 1962 were continued and concluded only in relation to Shri Mahendra Kumar Darewala, Shri Pawanchandra Mulchand Mehta, Shri Shant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision of the Hon'ble Supreme Court in S.P. Changalvaraya Naidu v. Jagannath [1994(1) SCC 1] had not been considered by the Tribunal in re SK Colombowala, held to the contrary. In particular, it is contended on behalf of Revenue that the adjudicating authority should have appreciated that the Tribunal while deciding M/s Rajesh Associates v. Commissioner of Customs [Appeal no. C/195-197/2012] had sought reference of these two rulings to a Larger Bench which, however, declined to decide on the reference as the expected determination by the Honble High Court of Madras would provide a wider jurisdictional guidance. It is also the contention of the Revenue that the conclusion of 'there being no direct linkage' of the three noticee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the customs duty ordered to be recovered on goods were cleared under a common advance licence granted to M/s. Choice Laboratories the penalty levied upon M/s. Choice Laboratories and the Petitioner arise from different causes of action. The liability to pay penalty is not joint but several. The offence committed by the Petitioner is totally independent and far more serious than the acts of the principle noticee and other persons involved and hence the case of the Petitioner cannot be considered on par with the main noticee. Accordingly, heavy penalty levied upon the Petitioner is justified and cannot be said to be harsh or excessive." 6. Learned Counsel for the respondent has placed reliance on the decision of the Tribunal in Virender Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst it in the Hon'ble High Court of Madras. 9. It is also pertinent to note that in Radiant Silk Mills Pvt Ltd v. Commissioner of Customs & Central Excise, Mumbai - II [2013 (288) ELT 311 (Tri.-Delhi)] a 'single member bench' of the Tribunal, placed in a similar quandary, had opined : "10. Learned DR has drawn my attention to recent Division Bench decision in the case of K.I. International referred supra, wherein the majority decision in the case of S.K. Colombowala does not stand followed by observing as under:- "It was plea of the appellants covered by adjudication orders Nos. 6949/07, dated 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, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appellants since that decision did not take into consideration the law laid down by Apex Court in the case of Chengalvaraya Naidu (supra). Accordingly, the orders passed by Settlement Commission in case of importers are not binding on Tribunal to grant relief to the appellants who were not before the Settlement Commission and fraud and Justice being sworn enemy of each other, the appellants in aforesaid appeals are barred to take undue advantage of orders of Settlement Commission since they were not before the Commission. Further, the doctrine of finality does not immune these appellants who defrauded Revenue." 11. As is seen from the above, the Division Bench has not followed the majority decision of the Tribunal in the case of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed as the same has not taken into consideration the Supreme Court judgment in the case of S.P. Chengalvaraya Naidu. The said judgment of the Hon'ble Supreme Court was in altogether different facts and circumstances and under different provisions of law. 10. Learned Authorised Representative drew my attention to the decision of the Hon'ble Supreme Court in Collector of Customs, Madras v. D. Bhoormull [1983 (13) ELT 1546 (SC)] and S A Futehally v. Commissioner of Customs, Mumbai [2004 (178) ELT 861 (Tri.-Mumbai). These decisions, as well as that in re Yogesh Korani, were in connection with immunity under Kar Vivadh Samadhan Scheme whereas SK Colombowala v. Commissioner of Customs (Import), Mumbai is specific to immunity accorde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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