Page 202 - ELT_15th June 2020_VOL 372_Part 6th

880 EXCISE LAW TIMES [ Vol. 372

(iii) The Commissioner erred in not finding the involvement of the Indi-
an agent of the supplier, Shri Santosh Nair despite the fact that he
has issued the Proforma Invoice only for US$ 46000 while knowing
the actual price as US$ 30500. This act of omission/commission
committed by Shri Santosh Nair has rendered the said goods liable
for confiscation u/s 111 of Customs Act, 1962 and therefore he ren-
ders himself liable for penal action under section 112(a) ibid.
(iv) The Commissioner ought to have considered that so far as Shri
Santosh Nair was concerned the Settlement Commission has not
passed any order granting him immunity, and therefore, for his acts
and omissions as stated in Show Cause Notice he was liable to penal
action under Section 112(a) and/or 112(b) of the Customs Act, 1962
and Commissioner ought to have held him liable to penalty.
2.2 With the above ground Commissioner was directed to file the ap-
peal to Tribunal, to determine the following -
(a) Whether under the facts and circumstances of the case, the order
passed by the Commissioner of Customs (Adj.), Mumbai is legal
and proper?
(b) Whether under the facts and circumstances of the case the adjudi-
cating authority should have dropped the charges against Shri San-
tosh Nair, the Indian agent of the foreign supplier?
(c) Whether under the facts and circumstances of the case, the adjudi-
cating authority ought to have proceeded against Shri Santosh Nair
u/s 112(a) and/or 112(b) of the Customs Act, 1962?
(d) Whether under the facts and circumstances of the case, the case be
remanded back for considering afresh?
(e) Pass such an order as Hon’ble Tribunal may deem fit and proper?
2.3 On the basis of the above review order, revenue filed appeal No.
C/1084/2004, making M/s. Big Vision Pvt. Ltd. as respondents.
2.4 Subsequently they filed another appeal No. C/303/2005, along with
application for application for condonation of delay making Shri Santosh Nair as
respondent. The application for Condonation of Delay seeking condonation of
delay of 88 days in filing this appeal which is supplementary appeal to the ap-
peal filed earlier was allowed by the Tribunal vide its Miscellaneous Order No.
M/85786-85787/2019, dated 4-9-2019.
3.1 We have heard Shri Manoj Kumar, Assistant Commissioner, Au-
thorized Representative for the Revenue and Shri Jhamman Singh, Advocate for
M/s. Big Vision Pvt. Ltd. (Respondent 1) and Shri S.P. Sheth Advocate, for Shri
Santosh Nair (Respondent 2).
4.1 The matter in the case of Respondent 1 has been settled by the order
of Settlement Commission as has been noted by the Commissioner in the im-
pugned order. Even the review order and appeal filed do not urge anything in
respect of the dropping of the proceedings against them in view of immunity
granted by the Settlement Commission, we do not find any merits in the appeal
and dismiss the same as infructuous.
5.1 The entire case against the Respondent 2, is vis-à-vis the Proforma
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