1987 (2) TMI 83 - AT - Customs

Tribunal Upholds Rs. 75,000 Penalty for Restricted Goods, Sets Aside Rs. 25,000 Penalty on Firm; Redemption Fine Rs. 24,000.

HASMUKH DALPATRAI GANATRA & ANOTHER Versus COLLECTOR OF CUSTOMS, BOMBAY

HASMUKH DALPATRAI GANATRA & ANOTHER Versus COLLECTOR OF CUSTOMS, BOMBAY - 1987 (30) E.L.T. 782 (Tribunal) Issues Involved:1. Legality of penalties under Section 112 of the Customs Act.2. Jurisdiction to order absolute confiscation of goods.3. Imposition of separate penalties on the proprietor and the proprietary firm.4. Classification of goods as 'prohibited goods.'5. Applicability of Section 117 for penalty.6. Option to redeem confiscated goods under Section 125 of the Customs Act.Issue-wise Detailed Analysis:1. Legality of Penalties under Section 112 of the Customs Act:The appellants contended that the penalties imposed under Section 112 were not legal as the goods were validly imported and the only contravention was the failure to comply with Chapter IV-A. They argued that Section 112 was not applicable and that the appropriate penalty should be under Section 117. The Tribunal found that the goods, even though validly imported, became liable for confiscation under Section 111(p) due to non-compliance with Chapter IV-A, thus attracting penalties under Section 112. The Tribunal concluded that the penalty of Rs. 75,000/- on Shri H.D. Ganatra was justified under Section 112, as the goods were subject to restrictions under Chapter IV-A, which constituted a prohibition under the Customs Act.2. Jurisdiction to Order Absolute Confiscation of Goods:The appellants argued that the absolute confiscation of the goods was illegal as the goods were not 'prohibited' and that an option to redeem the goods on payment of a fine should have been given under Section 125. The Tribunal noted that the goods were not 'prohibited' under Section 2(33) of the Customs Act but were subject to restrictions under Chapter IV-A. The Tribunal held that the Addl. Collector was required to give an option to redeem the goods on payment of a fine. The final order allowed the appellants to redeem the goods on payment of a fine of Rs. 24,000/-.3. Imposition of Separate Penalties on the Proprietor and the Proprietary Firm:The appellants contended that separate penalties on Shri H.D. Ganatra and his proprietary firm were not legal. The Tribunal agreed, stating that it was not correct to impose separate penalties on the proprietor and the proprietary firm as they are not distinct legal entities. The penalty of Rs. 25,000/- on M/s. Export Enterprises was set aside.4. Classification of Goods as 'Prohibited Goods':The Tribunal examined whether the 79 takas of synthetic fabrics were 'prohibited goods' under the Customs Act. It was concluded that the goods were not 'prohibited goods' as defined in Section 2(33) of the Customs Act because they were imported under valid licenses. However, the goods were subject to restrictions under Chapter IV-A, which constituted a prohibition for the purposes of Section 112. Thus, the goods were liable for confiscation under Section 111(p).5. Applicability of Section 117 for Penalty:The appellants argued that the penalty should be under Section 117, which provides for a penalty not exceeding Rs. 1,000/- for contraventions where no express penalty is provided. The Tribunal held that since the goods were liable for confiscation under Section 111(p) and the restrictions under Chapter IV-A constituted a prohibition, the penalty under Section 112 was applicable. Therefore, Section 117 was not applicable in this case.6. Option to Redeem Confiscated Goods under Section 125 of the Customs Act:The Tribunal held that the Addl. Collector was required to give an option to redeem the goods on payment of a fine under Section 125, as the goods were not 'prohibited' under the Customs Act. The final order allowed the appellants to redeem the confiscated goods on payment of a fine of Rs. 24,000/-.Final Order:The appeal regarding the confiscation of the goods was rejected, but the appellants were given an option to redeem the confiscated goods on payment of a fine of Rs. 24,000/-. The penalty of Rs. 75,000/- on Shri H.D. Ganatra was confirmed, while the penalty of Rs. 25,000/- on M/s. Export Enterprises was set aside. The combined appeal of Shri H.D. Ganatra and M/s. Export Enterprises was disposed of accordingly.