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TMI Blog2019 (1) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... to evasion of duty and rendering the impugned goods (in the case of M/s. Anika Global Impex) liable to confiscation. It is notable that the findings of the Bench do not concern the status of Maheshchandra Sharma-whether de facto owner or otherwise. The statements of Maheshchandra Sharma and also of his son Aditya Sharma (in M/s. Anika Global Impex case) were recorded under Section 108 of the Act and are admissible as evidence against them. It was not the case of Maheshchandra Sharma that these statements were ever retracted. In view of Section 127L of the Act, Maheshchandra Sharma is not entitled to apply for settlement in the present case of M/s. Aditya International Trade Co. He being the proprietor of M/s. Aditya International Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s - Maheshchandra Sharma was wrongly mentioned as de facto owner in the earlier settled case of M/s. Anika Global Impex; he had no role whatsoever in the running of that firm, as deposed by the proprietor Aditya Sharma in his letter, dated 3-1-2019. There is no legal term de facto owner in the Customs Act. Maheshchandra Sharma had strongly opposed, before the Settlement Commission, designating him as de facto owner in the earlier case of M/s. Anika Global Impex because he had no personal interest or benefit from working in M/s. Anika Global Impex. So he may be called as Authorized signatory or an Employee (but not de facto owner). DRI had recorded a confessional statement from Maheshchandra Sharma (mostly under duress/pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to description and value of the imported goods. His role is set out in para 26 of the SCN. The co-applicant in his statement, dated 15-11-2016 recorded under Section 108 of the Act has accepted his role. The co-applicant is the father of the proprietor Aditya Sharma and was responsible for the misdeclaration of the impugned goods. The actual invoice giving the correct description and value was received in his e-mail ID as accepted by him in his statement. His admission of wrong-doing is also corroborated by the statements of the proprietor Aditya Sharma (his son). While legally there cannot be a separate penalty on Aditya Sharma and AGI, the position of Maheshchandra Sharma is different; he is not the proprietor on record. Merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Global Impex. De facto owner is not defined in the Act, The Settlement Commission, in its Order # 04/2018, dated 31-1-2018 does not concern itself with the status of Maheshchandra Sharma as de facto owner or otherwise in the earlier case of M/s. Anika Global Impex. In the present case of M/s. Aditya International Trade Co., Maheshchandra Sharma is simply an applicant. Section 127L of the Act disentitles an applicant from applying for settlement, in his capacity as a person, if he was penalized by the Commission as applicant in any earlier case. In the present case Maheshchandra Sharma is thus disentitled from applying for settlement because he was earlier penalized in the case of M/s. Anika Global Impex i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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