Conclusion: Since there was a clear nexus between the appellant -company and all the co-noticees for the alleged violation of the impugned notification which extended the concessional rate of customs duty of 20% ad valorem provided the imported CPO was meant for use in manufacture of soap, therefore, penalty was leviable under section 112B on the main noticee as well as co-noticees for evasion of customs duty.
Held: Appellant-company was involved in import of Crude Palm Oil [CPO] at concessional rate of Customs Duty while availing the benefit of notification no. 20/2004-Cus dated 16.1.2004 which extended the concessional rate of customs duty of 20% ad valorem provided the imported CPO was meant for use in manufacture of soap. Department, however, gathered an intelligence that imported CPO was never used by them for manufacturing soaps as was prescribed under the said notification but was sold in the open market. Thus alleging the evasion of the aforesaid amount of customs duty that a show cause notice was served upon the appellant proposing the recovery of the aforesaid amount of duty along with interest at appropriate rate and the proportionate penalty. The show cause notice was also served upon the Mr. Lalit Goyal, M/s. Genex Consultant Pvt. Ltd., M/s. A V Agro Products Pvt. Ltd for knowingly and willingly dealing with imported CPO in violation of the condition of the impugned notification thereby causing the evasion of the impugned customs duty. The show cause notice also proposed the entire amount of imported CPO to be confiscated. The said proposal was confirmed vide the order. It was held that the evidence proved that the various tankers which arrived at the factory of noticee no. 1 at different dates during the relevant period had transported some or the other quantity of CPO under respective GRs and form ST 31 of M/s. Genex Foods. This receipts and ST 3 returns were corroborating the statement of Shr. Harjinder Singh of M/s. H.G. Oil Carries against 3 of the appeals. Despite this evidence, the Director of M/s. Genex Foods Pvt. Ltd., opted to not to appear for rebutting the said evidence but to sent a simple letter alleging the show cause notice to be illegal. The statements on record were in due corroboration of the documents which sufficiently established that appellants were knowingly dealing with CPO imported in a clandestine and illegal manner, thereby making the said imported CPO liable for confiscation. As far as M/s. A.V. Agro Products (noticee no. 4 of one of the appellant herein) was concerned, they also opted to reply vide letter instead of joining the personal hearing. The tankers containing CPO as were diverted to M/s. Genex Food Ltd. similarly were diverted to M/s. A V Agro. The receipt register along with respective ST 31 form were available highlighting the involvement of M/s. A V Agro as well as in similar manner as that of M/s. Genex Food Ltd. It was observed that for transporting CPO to Delhi the bills of M/s. Venkuth Sales Corporation, Trinagar Delhi as well as of GRS of M/s. Jaspreet Road Lines of Punjabi Bagh, New Delhi were used and that of M/s. NC Traders, Mayur Vihar, Delhi were used. The investigation revealed that no such firm was found existing at the given address. Except that address of M/s. Jaspreet Road Lines were found to be that of M/s. HG Oil carriers. This finding again when read in light of Sh. Harinder Singh that GR 3 were handed over to him by Sh. Lalit Goyal, proprietor of appellant -company established the clear nexus between all the co-noticees for the alleged violation of the impugned notification including the appellant herein. Thus, penalty has been imposed upon three of the appellants under section 112 B of the Customs Act.
FULL TEXT OF THE CESTAT JUDGEMENT
1. This order disposes off three appeals, order under challenge being commo. The present appeal was earlier disposed of as rejected vide final order no. 52153-52155/2018 dated 5.6.2018. An application praying for restoration of appeal as filed by the appellant was also dismissed vide order of this Tribunal dated 21 February 2019. However, Hon’ble High Court of Delhi vide order dated 22.5.2019, has set aside both the said orders restoring the impugned appeal and directing this Tribunal for a fresh decision in accordance with law. The appeal is accordingly heard.
2. Relevant factual matrix for the disposal of the appeal is as follows:
That the appellant herein is involved in import of Crude Palm Oil (hereinafter called as CPO) at concessional rate of Customs Duty while availing the benefit of Sl. No. 30 of Notification no. 21/2002-Cus dated 1.3.2002 as amended by notification no. 20/2004-Cus dated 16.1.2004. The said notification extends the concessional rate of customs duty of 20% ad valorem provided the imported CPO is meant for use in manufacture of soap. The Department, however, gathered an intelligence that M/s. Pioneer Soap and Chemicals are misusing the exemption extended vide the said notification by violating the condition thereof as they are diverting the CPO to the open market instead of using the same for the given purpose. During investigation, Department observed that the appellant obtained the Central Excise Registration on 28.12.2004 and thereafter under six BOEs imported 1371.878 MTs of CPO from January 2005 to August 2005 against concessional rate of duty of 20% ad valorem availing thereby total exemption of customs duty of Rs.1,27,72,140/-. However, the said imported CPO was never used by them for manufacturing soaps as was prescribed under the said notification but was sold in the open market. Thus alleging the evasion of the aforesaid amount of customs duty that a show cause notice no. 1061/24 dated 24.4.2007 was served upon the appellant firm i.e. M/s. Pioneer Soap & Chemical, proposing the recovery of the aforesaid amount of duty along with interest at appropriate rate and the proportionate penalty. The show cause notice was also served upon the proprietor of aforesaid firm, Sh. Lalit Goyal, alleging that he has fabricated various other documents by making false entries therein. Those fabricated documents are alleged to have been submitted to the Assistant Commissioner for obtaining the order of release of imported CPO. Alleging that the order of release after furnishing bonds and security as obtained by way of fraud, suppression and wilful misstatement that the penalty was proposed upon Mr. Lalit Goyal. The show cause notice was also served upon M/s. Genex Consultant Pvt. Ltd., M/s. A V Agro Products Pvt. Ltd. and M/s. HG Oil Carriers for knowingly and willingly dealing with imported CPO in violation of the condition of the impugned notification thereby causing the evasion of the impugned customs duty. The show cause notice also proposed the entire amount of imported CPO to be confiscated. The said proposal was confirmed vide the order in original no. 10/D-I/2010 dated 30.4.2010. Being aggrieved thereof that the impugned appeal has been filed.
3. Learned counsel for the appellant made following submissions:
i. The allegations against the main assessee i.e. Pioneer Soap & Chemicals was that it had imported CPO and paid concessional rate of duty of 20% ad valorem as per Notification no. 21/2002-Cus dated 1.3.2002 as amended by Notification no. 20/2004-Cus dated 16.1.2004 and that the goods had been diverted for manufacture of soaps, detergents etc. instead of edible oil by Shri Lalit Goyal due to which he was called upon to pay differential duty on the imported CPO. Shri Lalit Goyal was arrested and was forced to pay the differential duty of Rs. 1,27,72,140/- after which he approached the Settlement Commission and got the case settled by the Settlement Commission Principle Bench, New Delhi vide a final order No. F829/830/Cus/09/SC(PB) dt. 24.2.2009. The Settlement Commission also imposed a penalty of Rs. 8 lacs on Shri Lali Goyal and Rs. 10,000/- each on Shri Mahesh Kumar, Shri Sunil Goyal, Shri Brij Mohan, H.G. Oil Carriers, Shri Harjinder Singh and Lokpriya Traders and closed the case. Therefore, the question of the Commissioner of Excise in Delhi conducting parallel or other proceedings in regard to the same case which is already settled by the Settlement Commision does not arise as he has no jurisdiction whatsoever against A.V. Agro Products in Kanpur and Genex Foods Pvt. Ltd. in Ghaziabad and Shri Rohit Agarwal, Director of Genex Foods Pvt. Ltd. in Ghaziabad. The excise Commissioner Delhi is denied to be proper officer in terms of Section 2(34) of Customs Act and as such is denied to have any jurisdiction to issue the show cause notice. The impugned show cause notice is therefore prayed to be barred by jurisdiction. Learned counsel has laid emphasis upon the decision of the Supreme Court in case of CC Vs. Sayed Ali 2011 (265) ELT 17 (SC) which was subsequently followed by this Tribunal in the case of Teracom Ltd. Vs. CCE (2016) 339 ELT 272 (Del).
ii. The law is well settled that when once the case of the main assessee is settled by the Settlement Commission or other competent authority under the KVSS, the conoticees do not even have to make an application and the case of every co-noticee stands automatically closed as held by the Supreme Court in Union of India Vs. Omkar S. Kanwar (2002) 145 ELT 266 (SC) and further emphasised by the Delhi High Court in Lesag HBB (I) Ltd. & Others. Vs. CC (2017) 346 ELT 549 decided on 3.11.2016 in W.P. (C) No. 4819/1999 which are binding.
iii. While submitting on merits it is mentioned that there are no statements given by three of the appellants and they have been proceeded against only on the basis of alleged statements of driver / transporter of the CPO that too were taken under coercion. It is further submitted that owner of Pioneer soap & Chemicals had not stated that he had supplied quoted goods to the appellant nor there is any other evidence on record. These witnesses were prayed to be cross examined but the request of the appellant was not considered. It is submitted that failure to grant cross examination to the appellants has resulted in denial of natural justice to the appellants and the alleged statements of the driver / transporter / the proprietor of the main noticee cannot be relied upon to draw the adverse inference against the appellant. Above all, there is no compliance of section 9D of the Central Excise Act and section 138B of the Customs Act. Following case laws has been relied upon:
a. Jindal Drugs Pvt. Ltd. Vs. Union of India (2016) 340 ELT 67 (P&H);
b. Arya Abhushan Bhandar Vs. Union of India (2002) 143 ELT 25 (SC);
c. CCE Vs. Parmarth Iron Pvt. Ltd. (2010) 260 ELT 514 (All.);
d. Swadeshi Polytex Ltd. Vs. Collector (2000) 122 ELT 641 (SC);
e. JK Cigarette Ltd. Vs. Collector (2009) 242 ELT 189 (Del.)
iv. The learned counsel has further justified the stand on merits by submitting that the appellant have not in any manner dealt with alleged offending goods nor had done anything as importer or exporter or buyer or seller of offending goods so as to attract section 112 (B) of the Customs Act. The decision in the case of of Him Logistics Pvt. Ltd. Vs. Principal Commissioner (2016) 336 ELT 15 (Del.) of this Tribunal has been impressed upon. With these submissions the order under challenge is alleged to have ignored the submissions and the fact that there is no evidence to proceed against the appellants. Order is accordingly prayed to be set aside and appeals are prayed to be allowed.
4. While rebutting the respective arguments the Department has submitted as follows:
i. As far as jurisdiction of Excise Commissioner as has been objected, learned DR has submitted that when imported goods are not used as per the Certificate of Registration given under Rule 3(2) of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 1996, Assistant Commissioner having jurisdiction over the factory shall have jurisdiction to issue notice for recovery of differential duty under Rule 8 ibid and not the Assistant Commissioner of Customs at the port of importers under Rule 5 ibid. Decision of this Tribunal in the case of Samtel Colour Ltd. Vs. Collector of Central Excise reported in 2000 (126) ELT 1256 (Tri) has been impressed upon with the mention that the said judgment has been upheld by the Hon’ble Supreme Court of India vide its judgement in the case of Samtel Colour Ltd. Vs. Collector 2006 (196) ELT A 145 (SC). The said decision has subsequently been reaffirmed in the case of Cosmo Ferrites Ltd. Vs. Commissioner of Central Excise reported in 2015 (318) ELT A157 (SC).
ii. The proceedings against the co-noticees who do not prefer any application before Hon’ble Settlement Commission cannot come to a suo moto hault. The immunity which got available to the applicant before Settlement Commissioner including the main noticee cannot be extended to the appellants herein. The learned DR has relied upon the decision in the case of Mamta Garg Vs. CCE Noida 2018 (359) ELT 77 (Tri-Del) and on another decision in the case of Shri Naklank Ltd. Vs. CESTAT Ahmedabad 2019 (365) ELT 407 (Guj.). It is impressed upon that the appellant has been banking upon this sole argument of automatic immunity in their favour due to the decision of Settlement Commission in favour of main noticee and seven other co-noticees. Despite that the Settlement Commission, itself has given liberty to the Department to proceed against the remaining conoticees.
iii. The allegation of no opportunity of being heard, as raised by the appellants and that the denial of cross examination of the witness is denied to be the violative of principles of natural justice, as is alleged. It is submitted that many opportunities of hearing were given to the appellants. They were duly informed about the impugned evidence documentary as well as oral as obtained against them but they did not opt to avail the said opportunity. The argument of any such opportunity being denied is therefore not sustainable. With respect to the grievance about any opportunity not being given for cross examination, the decision in the case of Silicone Concepts International Pvt. Ltd. Vs. Principle Commissioner ICD TKD New Delhi vide final order no. 50963/2019-CESTAT, New Delhi has been relied upon. With respect to the scope of Section 9 D it is submitted that it has already been settled that confessional statements are out of the ambit of section 9D. Otherwise also when noticee’s statement amounts to confessions, he cannot be compelled to be cross examined and thus no violation of principle of natural justice can be alleged. It is submitted by the Department that there has been ample evidence against the appellant to have sufficient knowledge about no washing soap to ever being manufactured from this imported CPO by M/s. Pioneer Soap & Chemicals, nor there has been any purchase by the present appellant of the soap. All documents of transport have been proved to be forged. Hence, the penalties have rightly been imposed upon the appellants. Justifying the order under challenge the appeal in hand is prayed to be dismissed.
5. After hearing parties and perusal of entire records my opinion to the respective arguments is as follows:
A. Immunity to the appellants due to the order of Settlement Commissioner in favour of the main noticee:
Show cause notice bearing No.15.10.50 1062 dated 24th April , 2007 was issued to 13 Noticees alleging the misuse of the exemption extended vide Sl. No.30 of Notification No.21/2002-CU by importing the crude palm oil at concessional rate at Customs duty and diverting the same to open market instead of using the same for the given purpose.
The main beneficiary was the first applicant M/s. Pioneer Soap & Chemicals. No doubt vide order dated 24.02.2009 the application of Noticees. Sl. No.1,6,5,8,10 & 13 of the show cause notice under Section 127 B of the Customs Act, 1962 was disposed of thereby imposing penalty upon 6 of the said applicants to the extent as mentioned in the said order. The argument put forth by the Revenue with respect to para 14 of the said order is perused as correct. A perusal of that order dated 24th February, 2009 shows that penalty was imposed upon six of the applicants and the Settlement Commission has given liberty to the Revenue to take action as deemed fit in respect of the other co-Noticees of the impugned show cause notice. Further, perusal also shows that Noticees No.7, 9, 11 & 12 of the show cause notice were also found to be fake persons existing in the fake documents prepared at the instance of the main Noticee. The remaining three Noticees i.e. at Sl.No.2, 3 and 4 are the appellant herein. It is observed that three of them have not merely been found the abetter or conspirator for the illegal act adjudicated against the other Noticees but they were found committing the offence of unauthorized transportation of the impugned crude oil with the sole intention of getting illegal benefit of Sl.No.30 of Notification No. 21/2002-CU.
No doubt the case law relied upon by the appellants holds good that once the immunity from penalty has been issued against the main Noticee by the Settlement Commission, the co-noticees enjoy the blanket immunity if the matter is settled under KVS Scheme. But this is also a settled principle of jurisprudence that merits of the case against the co-Noticees have to be examined separately and if and only if the co-Noticees are found to commit the same offence as that committed by the main Noticee, the Settlement mechanism provides for settlement of entire case as a whole. Tribunal, Delhi has clarified the situation further in Mamta Garg (Supra) case that where the act of Noticees is separately and distinctly liable for penal consequences, the co-Noticee are not to automatically get penalty set aside on the ground that the case of main Noticee has been settled by the Settlement Commission.
As already observed above, the act committed by three of the present appellants is an act in addition to that as were committed by the remaining Noticees the appellants cannot be entitled for the blanket immunity. Otherwise also the immunity from prosecution has not been granted even to Mr. Lalit Goyal, the Proprietor of main Noticee M/s. Pioneer Soap and Chemicals. The penalty has simultaneously been imposed upon the remaining Noticees/ applicants of 127 B Customs Act. In addition, the Settlement Commissioner has granted liberty to the Revenue to take the appropriate action against the remaining Noticees i.e. the appellants herein. Hence, the benefit of KVS Scheme cannot suo moto be extended to the appellants. I draw my support from the decision of Hon’ble High Court of Gujarat in the case of Shri Naklank Ltd. (Supra). It was held that it is the assessee who applies for settlement alone whose application would be considered and either granted or rejected in the terms of settlement, fulfilment of such terms by the applicant and the resultant grant of immunity would be only in relation to assessee, who applied for the settlement. There is no warrant under the statutory provision that upon one assessee applying for settlement, such settlement being granted and terms of settlement being fulfilled. Any other assessee even if he hopes to be co-noticee can avoid further adjudication of this case. It was clarified that Department can still proceed against co noticee who was facing only notice on penalty.
B. Jurisdiction of Central Commissioner:
The basic allegation of the Department is that the importer of crude palm oil at concessional rate of customs duty of 20% ad velorum has misused the exemption extended vide Sl. No. 30 of notification no. 20/2004-Cus as amended vide 20/2004-cus dated 16.1.2004 by diverting the same to open market instead of using the same for the purpose mentioned in the notification i.e. for manufacturing soap. This allegation clarifies that the verification of the compliance of the impugned notification involves customs as well as the excise, as it is the case of import as well as diversion of the imported goods in the local market. Samtel Colour Ltd. (Supra) has already clarified the impugned situation by holding that imported goods or not use as per certificate of registration under Rule 3(2) of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 1996, Assistant Commissioner having jurisdiction over his factory shall have jurisdiction to issue notice for recovery of differential duty and the
Assistant Commissioner of Customs at port of importation shall have no role at the import stage. In the present case also under Rule 3 of Customs Rule, the importer intending to avail Cenvat Credit Rule and duty was required to have acquired registration from Assistant Commissioner / Department Commissioner Central Excise having jurisdiction over his factory. All details indicated the quantity of goods to be imported the applicable notification the port of importation and giving an undertaking have to be furnished along with application before the Assistant Commissioner / Deputy Commissioner of excise only as is required under Rule 4 of Customs Rule. It is thereafter that the Assistant Commissioner or Deputy Commissioner of Customs can allow the benefit of exemption notification on the basis of the Certificate to be given by Assistant Commissioner / Deputy Commissioner Excise as stand clarified from Rule 5 of Customs Rule. Rule 7 thereof in addition require the importer to maintain the simple account of imported goods and consumption thereof for the information purpose for use as and when required by the officer of Central Excise. These Rules makes it abundantly clear that Commissioner Central Excise is a competent officer to issue invoices.
C. Personal hearing / cross examination:
It is apparent from the order under challenge that personal hearing was given to these appellants initially on 23.04.2007. However, none of these appellants appeared. It is on 28.05.2008 that appellant Sh. Rohit Aggarwal and M/s. Genex Food Pvt. Ltd. that too vide their letter dated 27.5.2008 made their submissions denying the allegations of the show cause notice and requesting for the relied upon documents as well as the cross examination of the witnesses. By that time i.e. on 27.5.2008 M/s. HG Oil Carriers noticee no. 5 (there were 13 noticees in the present case and 7 noticee of them i.e. main noticee along with no. 5, 6, 8, 10, 12 & 13 have already applied to the settlement commission, penalty against noticee no. 7, 9 & 11 was already dropped observing them to be fictitious firms).
M/s. Genex Consultant Pvt. Ltd. & Sh. Rohit Agarwal, Director thereof, were being duly heard by the Adjudicating authority below on 26.10.2009 and appellant M/s. A V Agro Products chose to put forth the defence vide their letter dated 20.10.2009. It is quite apparent from the order under challenge that despite ample effective opportunities of personal hearing being given, the appellants have not properly put forth their defence. They had rather adopted a strategy of seeking adjournments and therefore were noticed absolutely non cooperative by the adjudicating authority below. It is thereafter that the matter was decided based on the facts on record and the written reply received by the respective noticee. These observations are sufficient to hold that there is no denial of opportunity of being heard. The grievance of violation of principle of natural justice on this account is therefore not sustainable. As far as the plea of denial for cross examining the witnesses is concerned as already observed there was rather non cooperation on part of the appellant. Irrespective that cross examination is the key for fair trial so as to dug out the actual truth but the same cannot be claimed as a matter of right or as a statutory mandate specifically when appellant were not even keen to submit their defence. Hence, their grievance on this aspect is also hereby rejected.
As far as applicability of section 9D of Excise Act / 138B of Customs Act as rightly observed by the adjudicating authority that the statement recorded were more in the nature of confession. The same cannot be the scope applicability of section 9D. I draw support from Silicone concept (supra) as is emphasised by the Department.
D. Merits of the present case:
Lastly, coming to the merits, I observe from the record, that there were reports proving that M/s. Pioneer Soap and Chemicals, the main noticee / noticee no. 1 have issued fake invoices in the name of fictitious firms, such as M/s. Ashtuosh Traders, noticee no. 7, M/s. Kamakhya, noticee no. 9, M/s. N.K. Enterprises, noticee no. 11 showing manufacture and clearances of the soap from CPO imported by them illegally for taking exemption under impugned notification and diverting the impugned CPO to noticee no. 2 to 4 without using the said imported goods in manufacture of soap i.e. for the declared intended use. Otherwise also the said main noticee has already acknowledged the guilt by approaching before the Settlement Commission. Statement of Shri Harinder Singh, Partner of M/s. HG Oil and carriers, (noticee no. 5) has extended sufficient corroboration to the evidence against the present appellants as was deposed by the main noticee and as is apparent from the various documents recovered during the investigation as follows:
i. That, out of 53 tankers used in all, 25-26 tankers were diverted to M/s. Genex Consultant Pvt. Ltd. of Ghaziabad 7-8 tankers were off loaded in the factory of the noticee no. 1 and the CPO from the remaining tankers was shifted by the noticee No. 1 to other tankers of lesser capacity as he declined the request of the noticee to transport the CPO of those tankers to Punjab since his tankers did not have the road permit for Punjab;
ii. That, for transporting the CPO to Ghaziabad and Kanpur, the noticee’s employer usually came with Form ST-31, a Bill of some concern and mis-describing the CPO as “Rice Bran Oil” and GR of some other concern. The said employer used to travel in the tanker and facilitate the Sale Tax clearance at the UP Border;
iii. On the basis of registration numbers of tankers used for transporting the CPO from the ports of importation and the date of arrival thereof reflected by the noticee no. 1 in their receipt register, copies of Forms ST31 issued by M/s. Genex Consultant Pvt. Ltd. were collected from the Sales Tax Authorities of Ghaziabad. A scrutiny of Forms ST-31 so collected and the Noticee’s CPO receipt register.
This evidence proves that the various tankers which arrived at the factory of noticee no. 1 at different dates during the relevant period had transported some or the other quantity of CPO under respective GRs and form ST 31 of M/s. Genex Foods. This receipts and ST 3 returns are corroborating the statement of Shr. Harjinder Singh of M/s. H.G. Oil Carries against 3 of the appeals. Despite this evidence, the Director of M/s. Genex Foods Pvt. Ltd., Sh. Rohit Agarwal (one of the appellant) opted to not to appear for rebutting the said evidence but to sent a simple letter alleging the show cause notice to be illegal. The statements on record are in due corroboration of the documents which sufficiently establishes that appellants were knowingly dealing with CPO imported by M/s. Pioneer Soap and Chemicals in a clandestine and illegal manner, thereby making the said imported CPO liable for confiscation. As far as M/s. A.V. Agro Products (noticee no. 4 of one of the appellant herein) is concerned, they also opted to reply vide letter dated 11.7.2007 instead of joining the personal hearing. The tankers containing CPO as were diverted to M/s. Genex Food Ltd. similarly were diverted to M/s. A V Agro. The receipt register along with respective ST 31 form are available highlighting the involvement of M/s. A V Agro as well as in similar manner as that of M/s. Genex Food Ltd.
It was observed that for transporting CPO to Delhi the bills of M/s. Venkuth Sales Corporation, Trinagar Delhi as well as of GRS of M/s. Jaspreet Road Lines of Punjabi Bagh, New Delhi were used and that of M/s. NC Traders, Mayur Vihar, Delhi were used. The investigation revealed that no such firm was found existing at the given address. Except that address of M/s. Jaspreet Road Lines were found to be that of M/s. HG Oil carriers. This finding again when read in light of Sh. Harinder Singh that GR 3 were handed over to him by Sh. Lalit Goyal, proprietor of M/s. Pioneer Soap and Chemical establishes the clear nexus between all the co-noticees for the alleged violation of the impugned notification including the appellant herein.
6. In view of the entire above discussion, I do not find any infirmity in the order under challenge when a penalty has been imposed upon three of the appellants herein under section 112 B of the Customs Act. The order under challenge is therefore upheld. Three of the appeals accordingly stand dismissed.