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TMI Blog1990 (12) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... he outset Shri S. Ganesh, learned Advocate appearing for the appellants submitted that he is not questioning the merits of the case, i.e., findings given by the Collector regarding confiscation of the goods for illicit importation and consequently imposition of redemption fine and penalty on Shri P.K. Mehta who is actual importer in the present case but he is questioning the legality of imposition of penalty under Section 112(a) of the Act upon the appellants. 3. The case of the Department is that one Shri Mehta had arranged importation of goods by filling Bill of Entry on behalf of the appellants (M/s. Acquarius) declared to be Photo-composing/photo type-setting machine for printing machinery and claimed clearance of the goods against Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000/- on Shri Mehta under Section 112(a)(i) of the Customs Act, 1962. Hence this issue. 4. Shri S. Ganesh submitted that appellants are the recognised Export House and since they are always busy in executing export orders and they have very little knowledge regarding imports, they have executed a specific and special Power of Attorney in favour of one Shri Mehta for the importation of permissible items against their additional licence dated 24-9-1985 for Rs. 5,73,742/-. This Power of Attorney was not a simple letter of authority as it was held by the Collector. He said that the Collector was not consistent on this finding as per impugned order as the Collector has referred to the Power of Attorney as a simple letter of authority at so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the importer and redemption fine and penalty were not sustainable, relying on the ratio of the decision in the case of Monica Electronics (P) Ltd. v. Collector of Customs [1988 (38) E.L.T. 642]. 5. Next, he argued that penalty proceedings are quasi-criminal proceedings and such proceedings should be initiated in strict consonance with the provisions of the Statute. In the present case, there was mentioning of Section 112 only in the show cause notice without reference to either clause (a) or (b) of Section 112, the penalty under Section 112(a) was not sustainable in view of the decision in the case of B. Lakshmi Chand v. Govt. of India [1983 (11) E.L.T. 322 (Mad.)], wherein it was held that if the penal action is proposed to be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the appellants, illegal importation took place under that licence and Bill of Entries were filed in the name of the appellants. The appellants cannot escape the penal action on the ground that goods were imported by Power of Attorney Holder. He argued that persons concerned with illegal importation are liable to penalty in respect of goods which were confiscated. He reiterated the grounds taken by the Addl. Collr. in imposing the penalty under Section 112(a) of the Customs Act and justified the penalty for unauthorised transfer of licence. 7. In reply, Shri Ganeshan submitted that Power of Attorney does not cease to be a Power of Attorney for non-attestation and this was not required to be produced at the time of filing Bill of En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. But it would have been more appropriate if the sub-clause of Section 112 was mentioned even in the show cause notice. Further, Section 112(a) has nexus to the import or importation of goods, any person in relation to such goods does or omits to do any act or abets the doing or omission of such an act, is liable to penalty as it was rightly argued by the learned SDR. The contention of the appellants' counsel is that the appellants have executed a special Power of Attorney permitting him to import permissible items and whereas he exceeded the jurisdiction and for such excess illegal action the appellants cannot be held liable for penal action. Without going into the controversy whether the authorisation in the present case amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Controller of Imports & Exports, New Delhi for prior permission which CCI & E, New Delhi may consider, on merits, subject to such conditions as may be imposed." Accordingly, authorising someone to act based on non-transferable additional licence without obtaining permission is in clear contravention of the provisions of the Import Control Act and Policy and such person concerned is liable to penalty under Section 112(a) of the Customs Act as an abetor. If Power of Attorney holder is not construed as an agent still the executant placed himself in a worst position as if he himself acted through another and involving directly in such illegal importation. The penalty under Section 112 (a) was imposed upon the appellants for importation t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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