2018 (9) TMI 516 - HC - Customs

Confiscation under Section 113(c) of the Customs Act - Export taking place or not - rice and paddy - In the raid it was found that the petitioner is indulging in permitting transportation of similar goods from Indo-Nepal border on tractors bearing Nepal registration number and various documents and materials showing indulgence of the petitioner in these kind of activities were seized - Held that - The earlier similar act by the appellant in illegally transporting the goods and various other material are available to hold that an attempt was made to export the goods and, therefore, the provisions of Section 113(c) of the Customs Act is attracted. The finding recorded by the Learned Tribunal in our considered view is a reasonable finding based on due appreciation of evidence that has come on record and we find that no substantial question of law involved in the matter for making indulgence into the same - Confiscation upheld. Penalty - Held that - Penalty can be imposed upon only on one of the persons or the legal entity, i.e. either the concerned establishment or its owner and not on both. Imposition of penalty on both would amount to double punishment which is not permissible in law. To that extent the appeal has to be allowed as the law prohibits imposition of penalty for the same act of omission or commission on two individuals - The concerned Revenue authorities directed to recover penalty either from the concern or establishment or from the owner but not from both. Appeal disposed off.

Summary

Issues:
1. Tenability of the order passed by the Customs, Excise and Service Tax Appellate Tribunal imposing duty and penalty.
2. Confiscation of goods under Section 113(c) of the Customs Act, 1962.
3. Interpretation of evidence and materials regarding the attempt to export goods to Nepal.
4. Imposition of penalty on both the proprietor concern and the individual owner of the establishment.

Analysis:
1. The appeal challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal, which imposed duty and penalty on the appellant for goods confiscated under Section 113(c) of the Customs Act, 1962. The goods in question, paddy and rice of Indian origin, were found in a godown near the Indo-Nepal border, rented by the appellant. Evidence indicated the goods were meant for transportation to Nepal, supported by statements of individuals involved in the activity. The Tribunal affirmed the confiscation, prompting the appeal.

2. The appellant cited legal precedents to argue against the imposition of duty and penalty, emphasizing that the goods were not in movement and no attempt was made to export them. The appellant contended that the requirements for invoking Section 113 of the Customs Act were not met. Additionally, the appellant objected to the imposition of penalties on both the concern and the individual owner, stating that only one entity should be penalized for the same act.

3. The High Court analyzed the evidence and materials on record, noting the Tribunal's conclusion that there was an attempt to move the goods across the border, satisfying the conditions of Section 113 of the Act. Witness statements confirmed the intention to export the seized goods to Nepal. The Court found the Tribunal's decision reasonable, considering the evidence presented, and concluded that no substantial legal question arose from the matter.

4. Regarding the imposition of penalties, the Court ruled that penalties should be imposed on either the establishment or its owner, not both, to avoid double punishment for the same offense. Therefore, the Court directed the Revenue authorities to recover the penalty from either the concern or the owner, but not from both parties. The appeal was disposed of accordingly, upholding the confiscation but modifying the penalty imposition.