2007 (12) TMI 175 - HC - Customs

Penalty - Held that the only one set of penalty can be imposed against either the Appellant Anil Kumar Mahensaria or the proprietorship firm - Tribunal was not correct in upholding the imposition of penalty on the proprietorship concern as well as on its sole proprietor Anil Kumar Mahensaria (Appellant) - since Mr. Anil Kumar Mahensaria is the Appellant before us, the penalty amount is required to be paid by him and not by the proprietorship firm

Summary

Issues involved:
Challenge to order under Section 130 of the Customs Act, 1962 - Imposition of penalty on a proprietorship concern and its sole proprietor.

Detailed Analysis:

Issue 1: Challenge to Tribunal's Order
The appellant challenged an order passed by the Custom Excise and Service Tax Appellate Tribunal, upholding the imposition of penalty on the proprietorship concern and its sole proprietor. The substantial question of law framed for consideration was whether the Tribunal was correct in imposing the penalty.

Issue 2: Allegations and Appeals
Adjudication orders were passed against various parties, including the proprietorship firm, its sole proprietor, and others. The allegation was that readymade garments were exported at an over-valued rate to benefit from a higher amount of drawback. Appeals were filed against the adjudication order, leading to the Tribunal's dismissal of the appeals and upholding of the adjudication order.

Issue 3: Contention of the Appellant
The only contention raised by the appellant was that penalty could not be imposed on both the proprietorship firm and its sole proprietor since they were considered the same entity. The argument was that there was no distinction between the two for the purpose of imposing penalties.

Issue 4: Identity of Entities
The respondent argued that the proprietorship firm was not found at the given address and did not appear during the investigation. This raised doubts about the distinction between the proprietorship firm and the sole proprietor, challenging the contention that they were separate entities for penalty imposition purposes.

Judgment and Direction
The court answered the substantial question of law in favor of the appellant, holding that only one set of penalty could be imposed on either the sole proprietor or the proprietorship firm. It was directed that the penalty amount should be paid by the sole proprietor, not the firm. The appeal was disposed of with these directions, favoring the appellant against the revenue.