9911796707
TMI Blog1999 (9) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... riefly stated the facts are that M/s. Swastika Fashions, New Delhi, cleared 37000 Yards in 99 cartons and 13,406 yards in 49 cartons of 100% Polyester fabrics from Customs in August - September, 1984 against Advance licence under Duty Exemption Entitlement Certificate Scheme (DEEC). The goods were cleared by M/s. Saindas Kishandas, Customs House Agent, who were engaged by Shri J.P. Singh, partner of M/s. Kays International and Shri H.S. Wadhwa, representative of Swastika Fashions. Investigation conducted by the Department revealed that Shri J.P. Singh, appellant No. 2, had arranged for import of these goods by opening letter of credit, placing orders with foreign supplier and as letter of authority holder of Swastika Fashions. The Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal had been accusing each other of mis-appropriating the goods. 3. Shri Harbans Singh, learned Advocate, submitted on behalf of both the appellants that M/s. Kays International, appellant No. I, is a partnership concern having two partners, K.P. Singh and J.P. Singh, appellant No. 2, engaged in the business of import of goods; that they were given a letter of authority by Swastika Fashions to import the impugned goods; that he referred to agreement at page 123 of paper book; that it was stipulated that the goods imported would be subsequently sold by them to Swastika Fashion on high sea sale basis; that their connection with the imported goods ceased to exist after sale on high sea; that this is evident also from the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner could not be penalised and penalty, if imposable, could be imposed only on either of them. He relied upon the decision in Shree Tirumala Udyog & Ors. v. C.C., Bangalore - 1998 (77) ECR 169 (T), wherein it was held that "the levy of penalty on both the partners and partnership concern separately is not maintainable in law as partnership concern is a compendium of the partners and penalty could be levied, therefore, either on the partnership concern or the partners. By making a reference to Section 140 of the Customs Act, the learned Advocate submitted that wherever legislative wanted to treat the firm as a separate entity, specific provisions have been made; and that penalty cannot be imposed on a partnership firm under Section 112(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wadhwa's name from face of photocopy of letter of authority given and filled in by Kays International. The learned DR, further, submitted that it was M/s. Kays International who were controlling the goods which is apparent from letter dated 25-9-1984 of Swastika Fashion addressed to appellant No. 1. It was mentioned in the letter that though the goods had been imported and cleared by Kays International, no goods had been sent to them; that in letter dated 26-9-1984 Kays International informed Swastik Fashions about release of consignment of 50 cases received under G.R. No. 3156 of M/s. All India Transport, Bombay. Learned DR referred to pages 15, 18 and 19 of the impugned order and submitted that this shows that the high sea sale, was a fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of checking the illegal import, circulation or disposal of such goods by specifying these goods by Notification. Sections 11C to 11F of the Act required persons possessing notified goods to intimate the place of storage, to acquire the goods only with vouchers, etc. to maintain accounts and sale of such goods to be evidenced by vouchers. Any violation of any provisions of Chapter IVA makes the goods liable for confiscation under Section 111(p) of the Customs Act. We observe that though the show cause notice was issued to confiscate the goods under Sections 111(d), (O) and (p) of the Act, the Commissioner had only confiscated the goods under Sections 111(O) & (p) only, i.e. for violation of condition of exemption and for vio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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