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2014 (6) TMI 446 - AT - CustomsConfiscation of goods - Redemption fine - Penalty imposed on partnership firm and partner each u/s 112 - import of memory cards of ‘STRONTIUM’ brand Micro SD Memory cards of 2GB capacity - declared as ‘PERSONAL EFFECTS/CLOTHS/SEE INLAY’ - Difference of opinion - Majority order - Held that:- under Notification issued by the Central Government under Section 11 of the Customs Act, 1962 import of dutiable goods through letter, packet or post parcel is restricted to the cases where such letter, packet or post parcel is accompanied by a declaration stating the nature, weight and value of its contents and such declaration is either enclosed therein or is pasted on to the parcel and the Commissioner of Customs is satisfied that the nature, weight and value of the contents of the letter, packet or post parcel had been correctly stated in the declaration. In this case, undisputedly the nature of the contents and the value has been grossly mis-declared and hence this import is in contravention of the prohibitions imposed by the Central Government under Section 111 and hence irrespective of the applicability of Clause (l) and (m) of Section 111, the goods would be liable for confiscation under Section 111 (d). In this case while the Commissioner has imposed redemption fine of ₹ 12,00,000/- and the same has been upheld by Hon’ble Member (Technical), Hon’ble Member (Judicial) has reduced the fine to ₹ 6,00,000/-. No calculation of the margin of profit has been given by the Department and this is the ground on which the redemption fine has been reduced. Since, the redemption fine in lieu of confiscation is dependent upon the profit margin in respect of which there is no evidence, on the question of redemption fine, I agree with the decision of Hon’ble Member (Judicial). Penalty of partner of the firm - Held that:- since penalty has been imposed on partnership firm under Section 112 (a), separate penalty on its partner, Shri Aditya Batra would not be justified under Section 112 (a). Penalty under Section 112 (b) is attracted when in respect of any illicitly imported goods liable for confiscation under Section 111, any person acquires their possession or deals with them in the manner mentioned Clause (b) of Section 112. In this case, the goods imported had not even been cleared and, as such, there was no question of Shri Aditya Batra having acquired their possession or being concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or any other manner dealing with the imported goods. For this reason penalty under Section 112 (b) on Shri Aditya Batra is not justified. Thus, while penalty on Shri Aditya Batra is not imposable under Section 112 (b), penalty on him as imposed under Section 112 (a) is not justified when for the same offence penalty has been imposed under Section 112 (a) on M/s Siddhant Enterprises of which Shri Aditya Batra is a partner - Decided partly in favour of assessee.
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