2010 (9) TMI 308 - HC - Customs

Penalty on partner - penalty imposed on the partner when the penalty is already imposed on the firm - partnership firm is equated with a company, whereas there is no such corresponding provision in relation to imposition of penalties under the Act - no separate penalty was warranted on the partners in addition to the penalty on the partnership firm - no role of the partner was indicated in the show cause notice Appeal dismissed

Summary

Issues:
1. Imposition of penalty under Section-114A of the Customs Act, 1962 based on partner's admission.
2. Tribunal's error in not addressing grounds of appeal and confirming penalty exemption.
3. Tribunal's decision on partner's liability and penalty imposition.
4. Comparison of liability between partnership firm and company for penalty imposition.
5. Deletion of penalty based on partner's role and incorrect show cause notice section.

Analysis:
1. The case involved the imposition of a penalty under Section-114A of the Customs Act, 1962 based on an unretracted admission of a partner of M/s. D.K. Polyn Industries in a statement recorded under Section-14 of the Central Excise Act, 1944 and/or Section-108 of the Customs Act, 1962. The Commissioner of Central Excise and Customs, Surat-II filed a Tax Appeal questioning the validity of this penalty imposition.

2. The Tribunal was criticized for not addressing the grounds of appeal set out in the memo of appeal and during the hearing. The Tribunal confirmed the order of the Commissioner (A) which had deleted the penalty on the partner. The Tribunal's decision was based on the lack of specific allegations against the partner and the imposition of penalty on the firm, leading to the conclusion that no separate penalty on the partner was warranted.

3. The Tribunal's decision was further explained, highlighting that the penalty on the firm, confiscation of goods, and the nature of the case as a shortage were considered in exonerating the partner from the penalty under Section-114A of the Customs Act, 1962. The Tribunal emphasized that the partner's role was discussed, but no specific allegations were made against the partner, leading to the affirmation of the Commissioner (A)'s decision.

4. A previous judgment was referenced where the court equated a partnership firm with a company concerning liability for offenses under the Act but noted the absence of a similar provision for penalty imposition. The court upheld the Tribunal's decision that no separate penalty on partners was required in addition to the penalty on the partnership firm.

5. The Court dismissed the present appeal, stating that no substantial question of law arose from the Tribunal's order. The deletion of the penalty was justified based on the lack of the partner's role in the show cause notice and the incorrect section under which the penalty was levied. The decision was based on a comprehensive analysis of the facts and circumstances of the case, leading to the dismissal of the appeal.