2015 (10) TMI 604

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....Yarn classified under Chapter 54 of the Schedule of the Central Excise Tariff Act 1985. On 15.12.2002 the Central Excise Officers (Preventive), Customs Division, Surat, visited the factory premises of M/s Alpha and found 27,100 kgs of imported Polyester Yarn (POY) without covering of any duty paying documents. Shri Ilyas Kapadia, partner of M/s Alpha in his statement stated that they had bought 14399.438 kgs of imported POY, made in Indonesia from M/s Cosmic Textile, Surat, without any documents like invoice, Bill of Entry etc., and without payment of any customs duty. He further stated that the balance quantity of 12700.562 kgs of imported POY, made in Thailand, was purchased from a broker Shri Rafiqbhai Mohmmedbhai of Bhiwandi, Mumbai wit....

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....duty as deposited by them. Penalties were imposed on the partners of both the firms. 5. Learned Counsel on behalf of the appellants had not disputed the demand of duty. He submits that the confiscation of the seized goods under Section 111(d) of the Customs Act 1962 is not sustainable as the goods are not prohibited item. He relied upon the decision of the Hon'ble Gujarat High Court in the case of Rutu Auto Gas Pvt Ltd Vs UOI - 2002.149.ELT.10 (Guj.) and Avlon Syntex Pvt Ltd vs. CCE, Rajkot - 2007.213.ELT.706 (Tri Ahmd). 6. He further submits that the imposition of penalties on the partners are not sustainable, as per the decision of the Hon'ble Gujarat High Court in the case of Pravin N Shah Vs CESTAT - 2014.305.ELT.480 (Guj) and CCE....

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....uments in violation of the various provisions under Import/Export Exim Policy and the Customs Act relating to import only on filing of declaration and documents for clearance and after payment of duty and therefore confiscation of goods is justified. The case laws as relied upon by the Learned Counsel is not applicable in the present circumstance of the case. 9. We find force in the submission of the Learned Counsel of the appellants, regarding the imposition of penalty on the partners of the firms. The Hon'ble Gujarat High Court in various decisions held that once the partnership firm is penalized, the imposition of penalty on the partner is not warranted. In the present, we find that the partnership firm has already paid duty during th....