TMI Blog1994 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... port licence. Bills of entry were filed by the indenting agents along with the licence and other documents for clearance of some of the consignments which were then cleared. In respect of some consignments, bills of entry were filed and the goods were awaiting clearance pending payment of duty by the importers. In some other cases, no bills of entry were filed for the goods which had arrived in October 1987 and the goods were lying in the Calcutta docks and seized by the Customs Department on 22-2-1988 on the ground that they were liable to confiscation. Investigations were conducted in connection with the import of similar type of goods viz. ball bearings by M/s P.K. Himatsingka Co., during the course of which the premises of the Indenting Agents M/s. Impex International and the premises of Clearing Agent at Calcutta were searched and certain incriminating documents were recovered. Statements of Mrs. Kusum Himatsingka, Proprietor of the firm, M/s. P.K. Himatsingka Co. Shri P.K. Himatsingka, Chief Executive of the firm, the Indenting Agent, Clearing Agent were recorded from which it transpired that the list annexed to the import licence dated 24-1-86 had been removed by the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I-1574, dated 28-9-1987. 180 cases (4 pallets) - 28300 pcs. Ball and Roller Bearing type 6305 declared value Rs. 57600.00 per m.v. Neu brandanburg, Rot. No. 515/87, line No. 28, Bill of Entry No I-1573 dated 28-9-1987. 84 cases (4 Pallets)- 8400 pcs. Ball and Roller Bearings type 30207, declared value Rs. 42420.00 per m.v. Neu brandanburg, Rot. No. 515/87, Line No. Contravention of 111(d), (m) and (c) of the Customs Act, 1962. Adjudcation Order No. 2/89 125 cases said to contain 25000 pcs. type 6207 ball and roller bearings imported ex-Vishva Prafulla, Rot. No. 592/87 Line No. 63, Total Value Rs. 87,750/-. 306 cases said to contain 30600 pcs. type 30207 ball and roller bearings above 85 mm per indent No. IMP/TTE/28/87 dated 8-4-1987 of M/s. Impex International, Calcutta imported ex. Vishva Prafulla, Rot. No. 592/87 Line No 62, Total value Rs. 1,54,530/-, 90 cases said to contain 21600 pcs. type 30205 ball and roller bearings imported ex-vessel Vishva Prafulla, Rot No. 592/87 Line No. 61, Total value Rs. 81,864/-. Adjudication Order No. 3/89 Sub : Importation of 180 cases (10 pallets) - 28800 pieces ball and roller bearings type 6305 - declared value Rs. 57,600/- p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty upon her is that she signed forged list of spare parts for Romanian road rollers, which list was substituted for the genuine list attached to the import licence. Learned Counsel submits that she (Smt. Kusum Himatsingka) signed only blank sheets leaving them to be filled up by Rakesh Kumar, the representative of the Financier, under the bona fide belief that only permissible spare parts would be listed out therein and, he, therefore, submits that no offence has been committed by Smt. Kusum Himatsingka and, therefore, the penalty upon her is not justified or in any event only a nominal penalty ought to have been imposed. 5. Learned DR, Shri V.C. Bhartiya highlights the fact that the case of the Department is that of deliberate fraud, perpetrated by the appellants herein and, therefore, the offence is a serious one. He refers to the statement of December 1987 of Shri P.K. Himatsingka (page 107) in which he admits having imported the consignments in question through the Calcutta Port and that though M/s. P.K. Himatsingka were not actual users, the goods would be sold to actual users as per agreement with the PEC and the statement of Smt. Kusum Himatsingka (at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Licence which indicated description of the items permitted for import, part No., quantity permitted for import, unit cif price and total cif price of the goods. The PEC issued a letter of authority to M/s. P.K. Himatsingka Co. authorising them to operate thereupon i.e. to place an order on the foreign supplier, to open a L/C, to send payments for the goods, to obtain customs clearance for the same, to store them in the godown, etc. A separate agreement was concluded between PEC and the appellants for import/stock and sale of spare parts for Romanian road rollers against the Licence. The Department has been able to establish that the list attached to the Licence submitted by the appellants along with the bills of entry was not a genuine list - it indicated only Part No. and description without mentioning the limits of quantity or value and the contents of the two lists also did not tally with each other. The signature and stamp of the Deputy Marketing Manager of PEC and the seal of the office of the CCIE had been forged on the list and the fact of forgery has been confirmed by the officers of PEC and CCIE and admitted by Shri P.K. Himatsingka and Smt. Kusum Himatsingka - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proprietor (see pages 52, 71 and 80). The adjudication order at internal pages 13 and 17 also refers to Mrs. Kusum Himatsingka as the Proprietor of the importing firm. This being the uncontroverted position, Learned Counsel is correct in his submission that M/s. P.K. Himatsingka Co. is not a legal entity/juristic person having an existence independent of its sole Proprietor; hence we set aside the penalty imposed thereupon. (It is relevant to point out at this stage that the Judgment of the Kerala High Court in the case of India Sea Foods reported in 1984 (16) E.L.T. 243 relied upon by the DR is distinguishable on facts as the importer there was a Partnership firm with a Managing Partner and the Court held that both the firm and the partners could be subjected to a penalty under the provisions of the Customs Act, 1962). IV. Penalty on Smt. Kusum Himatsingka The facts of the case clearly reveal that she had a role to play in the fraud perpetrated by the appellants and we have already held that her defence that the entire import was actually carried out by one Rakesh Kumar of Bombay, is untenable. Therefore, we hold that penal action against her is justified. 7. However, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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