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TMI Blog2017 (8) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... ided and abetted the importer in the effort to dispose of the vehicle to Namit Malhotra within two years of its importation into India in violation of the provisions of EXIM Policy, had arranged for the sale/purchase of the said vehicle and has made himself liable for penal action and therefore ordering penalty under section 112(a) of the CA, 1962 - However, the penalty of ₹ 8 lakhs imposed by the adjudicating authority is on the higher side - penalty of ₹ 2,00,000/- would be more commensurate with the acts and omissions of the appellant Shri Haren Choksey. Appeal allowed - decided partly in favor of appellant. - C/241/2008 - 41339/2017 - Dated:- 31-7-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri C.A. Diwakar, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent ORDER Per Bench The above appeal came up for hearing today as per the published list. The appeal had been posted for hearing on 18.7.2017 on which day this Bench had passed an Interim Order No. 502/2017 observing that the appeal has to be heard on merits. It was held in the said order that the interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (Judicial) requesting for rehearing the matter. A copy of this letter is seen issued to Hon ble President of CESTAT, New Delhi, Member (Technical), CESTAT, Chennai and Assistant Registrar, CESTAT, Chennai. c. On 7.9.2009, the Deputy Registrar, Chennai has addressed to Registrar, CESTAT, New Delhi in regard to the above request of Member and seeking approval of Hon ble President for rehearing the case. d. On 22.9.2009, the Registrar, CESTAT, New Delhi has issued a letter as per orders of the Hon ble President that since the matter has already been disposed, there is no question of rehearing the matter. On 23.9.2009, on this letter, the Member (Judicial) has endorsed that the file may be forwarded to Member (Technical) at Bangalore for recording order. e. On 19.10.2009, the PA to Member (Judicial) at CESTAT, Bangalore has forwarded the fair order to SPS of Member (Judicial) at CESTAT, Chennai (who was also then the Vice President of CESTAT) for approval and signature. This letter was received on 23.10.2009 at 12:00 noon by SPS, Chennai. f. On 23.10.2009, an endorsement was made on this letter by Member (Judicial) to obtain clarification from President since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as withdrawn, the Registrar has no jurisdiction or power to pass an administrative order to that effect. 3. We have considered the above objections placed before us. At the outset, it is to be stated that the Hon ble High Court has remanded the matter to verify and record whether the first docket order is supported by reasons and if so whether it has been withdrawn. We have already concluded by the above interim order that the first docket order was not supported by reasons. Further, on 23.10.2009, it is actually not the Registrar who has given permission for relisting the case but the Hon ble President of CESTAT, New Delhi had issued orders which was communicated to CESTAT, Chennai through the Registrar, New Delhi. In such circumstances, we find no merit in the preliminary objections raised by the counsel for appellant. Be that as it may, at the cost of repetition, we have to say that the situation presented by the case needs to be resolved which, in our opinion, can be done only by hearing the case on merits since the second order passed by the Tribunal has already been set aside by the Hon ble High Court. 4.1 On merits, the learned counsel takes up to para 26 of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel who appeared on behalf of the appellant categorically stated that 'he does not dispute the imposition of penalties but seeks reduction of the same on the ground that in similar cases the amount of penalty imposed earlier were much less than what has been imposed that time'. In this circumstance, we are at a loss to understand why the learned counsel for the appellant in this proceeding, has chosen to defend and argue the matter on merits, especially when there is no change in the facts. 7.2 Learned counsel has contended that the appellant Shri Haren Choksey was only acting as a broker in arranging mortgage of the said vehicle. From the facts at hand what emerges is that the appellant Shri Haren Choksey in his statements dated 12.12.2006 and 8.6.2007, has inter alia, confirmed the following:- (a) That the importer did not come to meet him (b) That loan was arranged for purchase of vehicle from M/s. ICICI Bank and that loan was disbursed to Shri Namit Malhotra since he was co-applicant of the loan. (c) That Namit Naresh Malhotra issued cheques in the name of Saleem Mohammed for ₹ 13,86,000/- and another cheque in the name of Saleem Moham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s namely; (a) The total consideration for the said vehicle would be ₹ 17,46,000/- inclusive of all rates, taxes and duties and other levies; (b) that the above mentioned amount was to be paid by signing of the said agreement; (c) that Shri Saleem Mohammed agreed to give the possession of the above mentioned motor vehicle on signing of the said agreement along with all the original documents and duty receipts pertaining to the said vehicle. 7.7 We also find from the narration in page 4 of the impugned order that vide letter dated 3.1.2004 issued by M/s. Prime Focus Ltd. it had been confirmed that they had received ₹ 18,00,000/- on behalf of Shri Saleem Mohammed towards full and final consideration of vehicle loan against the said BMW vehicle. There is also reference to a letter dated 11.1.2005 issued by M/s. ICICI Bank addressed to RTO informing them that they had financed for the BMW vehicle to Saleem Mohammed. It further emerges that Shri Namit Malhotra was a co-applicant of the loan along with the importer Shri Saleem Mohammed to ICICI Bank. All these evidences, which have not been retracted or disproved by the appellant, only serve to establish the intricate web o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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