ORDER
C.N.B. Nair, Member (T)
1. This appeal by Shri Sanjay Kapoor is directed against imposition of penalty of Rs. 7 lacs on him vide Order-in-Original No. 2/Commissioner/97, dated 26/27-2-1997 of the Commissioner of Customs (Preventive), Gujarat. The learned Counsel representing the appellant submits that in the present case, the import was made by Shri Ram Kirpal, Proprietor, Sunder Brij Ayurvedic Pharmacy. Shri Sanjay Kapoor was only a co-accused in the offence. The penalty imposed on the importer, viz. Shri Ram Kirpal was only Rs. 1,000/- while a penalty of Rs. 7 lacs has been imposed on the co-accused, Shri Sanjay Kapoor. The learned Counsel submitted that such disproportionate penalties cannot be imposed on conspirators in the same case and who are equally guilty in the offence. He, therefore, submitted that the penalty imposed on Shri Sanjay Kapoor is arbitrary and is required to be reduced. In support of his submission, the learned Counsel drew our attention to the decision of the Supreme Court reported in AIR 1981 Supreme Court 1196 wherein the Supreme Court observed as under :-
“6. It was further submitted before us on behalf of the appellants that they had been discriminated against in the matter of punishment awarded for the offence which would appear from the fact that the licensee mills who were equally guilty were let off with a much lighter penalty. On the material produced before us it seems there may be some basis for the grievance made. Of course the fine to be imposed in lieu of confiscation is in the discretion of the customs authorities, but it would be unfair if the punishments awarded respectively to the appellants and the licensee mills were glaringly disproportionate when, as would appear from the facts summarised above, both were guilty of trafficking in licence. Accordingly, while affirming the decision of the Government of India on other points, we set aside the part of the impugned orders maintaining the fines levied by the Board and send the cases back to the board to consider whether the fines imposed on M/s. Madhusudan Gordhandas are really disproportionate to the penalty imposed on the licensee mills and levy such fines as would appear just and proper to the Board on such consideration. The Bank Guarantee furnished by the appellants for clearing the goods in question pursuant to the orders of this Court will remain enforceable till the final disposal of these cases.”
He also referred us to the decision of the Kerala High Court in the case of Collector of Central Excise & Customs v. Rajagopala Prabhu 1986 ILR Kerala Page 392 onwards and some other decisions. He also referred us to Tribunal’s decision in Final Order No. 2581-2585/97, dated 18-9-1997 in the case of Commissioner of Customs, Tiruchirapalli v. Chikku International and Ors.
2. Opposing the submissions made on behalf of the appellant, learned DR submitted that the order impugned in the present appeal had been passed by the Commissioner pursuant to our Final Order No. 96-97/97-A, dated 24-1-1997. The learned DR submitted that in Para 14, the Tribunal had confirmed the penalty imposed on Shri Ram Kirpal and had ordered the re-quantification of the penalty imposed on Shri Sanjay Kapoor. He, therefore, submitted that the Collector was at liberty only to requantify the penalty according to the direction contained in the Tribunal order. That direction was as under :-
“However, quantification of penalty imposed on Shri Sanjay Kapoor (Rs. 10 lacs) calls for interference. It has to be made afresh after quantifying the assessable value as indicated above.”
The learned DR explained that the assessable value declared by the importers was @ of Rs. 10.25 to Rs. 10.71 per Kg. In the original jurisdiction proceedings, this value was increased to Rs. 13 per Kg. Pursuant to the remand order of the Tribunal, the value declared by the importers (Rs. 10.25 to Rs. 10.71 per Kg.) was accepted. Learned DR submitted that as the remand order had permitted only requantification of the penalty after quantifying the assessable value, the adjudication authority was at liberty, in terms of the remand order, only to make proportionate change in the penalty amount. Accordingly, the Commissioner had lowered the penalty from Rs. 10 lacs to Rs. 7 lacs. The learned DR submitted that as the variation made bore (sic) close ratio to the difference between the assessable value originally taken and the assessable value taken in the second adjudication, the penalty amount fixed has to be treated as in conformity with the remand order and no variation is called for or justified. He also submitted that the vast variation between the penalties imposed on Shri Ram Kirpal and Shri Sanjay Kapoor had been fully explained and justified in the first adjudication order of the Commissioner and the gravity of the offence varied vastly between the two accused. The learned DR submitted that such variation was the reason for the Tribunal upholding the variation in the two penalties. He, therefore, submitted that the observations contained in the order of the Supreme Court reported in 1981 SUPREME COURT 1196 did not apply to the present case. The responsibility of the two co-accused for the offence was very different. They were not equally guilty persons. Therefore, variation in penalty is fully justified.
3. We have perused the records and have considered the submissions made by both sides. As has been correctly contended by the DR, the remand order of the Tribunal had contemplated only a requantification of the penalty on Shri Sanjay Kapoor. That was also required to be done on the basis of the assessable value worked out. The Tribunal had also specifically recorded a finding that “penalty of Rs. 1,000/- imposed on Shri Ram Kirpal does not call for any interference.” Thus, the Tribunal ordered requantification of the penalty on Shri Sanjay Kapoor after being fully aware of the vast difference of the penalties imposed on the two co-accused, namely Shri Ram Kirpal and Shri Sanjay Kapoor. The reason for the variation was the role played by each. Shri Ram Kirpal was only a name lender. The entire manipulation was done by Shri Sanjay Kapoor. In this view of the matter, it was not open to the Commissioner to re-appreciate the entire evidence in the remand proceeding and to impose penalty on the appellant. His ambit was limited to requantifying the penalty based on the requantification of assessable value. Therefore, the modification to be made by him on the penalty was to bear close ratio to the requantification of the assessable value. We find that such close ratio exists in the reduction made in the impugned order in respect of the penalty.
4. The remand order of the Tribunal has become final as the same had not been challenged by the appellant. Therefore, the readjudication carried out by the Commissioner had to be within the parameters of that remand order. It was not open to him to reconsider the case in its entirety. For that reason, we are also precluded from considering the case in its entirety. As we find that the order of the Commissioner is in conformity with the remand order, we find no reason to interfere with the same. The penalty imposed on Shri Sanjay Kapoor is confirmed and the appeal is rejected.