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TMI Blog2019 (11) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in other cases wherein the appellant has confessed his guilty and has also approached the Settlement Commission along with other importers and paid the penalty of ₹ 10,000/- imposed by the Settlement Commission . but as far as, this case is concerned, there is no evidence on record to establish that the appellant has helped the importer in undervaluation of the furniture imported by them. Therefore, the Revenue has failed to establish the charge against the appellant on merits. The role of appellant has not been established in aiding and abetting the importer to undervalue the imported furniture. Therefore, in the facts and circumstances and the evidence on record, imposition of penalty on the appellant is not tenable in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the said goods. Further it was alleged that the appellant has not disclosed the facts to the Customs department which has resulted in undervaluation and non-payment of appropriate Customs duties. Appellant was directed to show cause as to why penalty under Section 112(a) of the Customs Act should not be imposed on him for his acts of omission and commission which has rendered the goods liable for confiscation under Section 111(m) of the Act. The appellant filed reply to the show-cause notice and submitted that though he was approached by M/s. Gardenia Comforts in the initial stage of setting up of their hotel, but eventually was not engaged as a consultant and hence he was in no manner involved in the setting up of the hotel or import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has not been engaged by the Gardenia Comforts as consultant and he has no role in import of the said furniture by Gardenia Comforts. He further submitted that appellant was engaged as consultant by few other importers who have imported furniture from China and those importers have been issued show-cause notices with the charge of undervaluation and appellant was also charged with abetment in those imports. But in the present case, the appellant is not involved but still charged for abetment. He also submitted that all those cases in which the appellant was involved in the undervaluation, he filed application for settlement of cases before the Settlement Commissioner along with importers and settled the cases and the Settlement Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that once the main case is settled, all the cases of conoticees get settled. 4. On the other hand, the learned AR defended the impugned order and submitted that the appellant has acted as a consultant for the importer M/s. Gardenia Comforts and has helped the Gardenia Comforts to undervalue the furniture imported from China and therefore he has been rightly imposed penalty under Section 112 of the Customs Act. He further submitted that settlement of the case by the importer does not absolve the appellant from the offence committed by him. He also submitted that the role of the appellant has to be independently examined and the benefit of Section 28(6) of the Customs Act cannot be given to him. In support of his submission, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, this case is concerned, there is no evidence on record to establish that the appellant has helped the importer in undervaluation of the furniture imported by them. Therefore I hold that the Revenue has failed to establish the charge against the appellant on merits. As far as other contention of the appellant is that this Tribunal in the case of N.S. Mahesh has held that once the case is settled by the Settlement Commission, the proceedings against the co-noticee also stands concluded though there are contrary judgments on this issue. Because in the case of Mamta Garg and Motilal Gupta, the Tribunal has held that once the case is settled by the Settlement Commission, the co-noticee is not automatically exonerated and his role has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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