2008 (10) TMI 242 - HC - Customs

Penalty - Revenue submits that under Section 3(42) of the General Clauses Act, 1897 association of persons is also covered by the definition of person and, thus, the firm will also come within the purview of Section 112 of the Act. It may be a different matter whether penalty can be simultaneously on the firm as well as on the partners - appellate authority set aside the penalty on the ground that in the show cause notice, relevant clause of Section 112 of the Act was not mentioned, which vitiated the order - held that no prejudice shown to have been caused to noticees by ommission to specify relevant clause of Section 112 - such mmision could not per se vitiate the penalty

Summary

Issues:
1. Alleged mis-declaration of exported items for higher export incentives.
2. Confiscation of goods and imposition of penalty on exporter and partners.
3. Omission of relevant clause of Section 112 of the Customs Act in the penalty notice.
4. Interpretation of whether omission of relevant clause vitiates penalty.
5. Liability of penalty on firm versus partners.

Issue 1: Alleged Mis-declaration of Exported Items
The case involved a Show Cause Notice alleging mis-declaration of exported items to obtain higher export incentives. The exported item, "Crank Shafts for high speed compressor," was declared as "Timing Shafts for Mercedes Truck."

Issue 2: Confiscation of Goods and Imposition of Penalty
The adjudicating authority found the exporter attempted to evade duty, leading to the confiscation of goods and recovery of exempted duty with interest. Additionally, a penalty was imposed on the exporter, along with personal penalties on the partners of the firm.

Issue 3: Omission of Relevant Clause in Penalty Notice
The appellate authority and Tribunal set aside the penalty, citing the omission of the relevant clause of Section 112 of the Customs Act in the show cause notice as a ground for vitiating the order.

Issue 4: Interpretation of Omission in Penalty Notice
The High Court considered whether the mere omission of the relevant clause of Section 112 of the Act would automatically invalidate the penalty without demonstrating any prejudice. The Court found that such an omission did not per se vitiate the penalty, referencing a previous judgment supporting this view.

Issue 5: Liability of Penalty on Firm vs. Partners
Regarding the liability of penalty, the counsel for the assessee argued that the penalty should not be imposed on the firm and should instead be levied on the partners individually. The Revenue's counsel contended that the firm, as an association of persons under the General Clauses Act, fell within the purview of Section 112. The Court left the question of whether penalties could be imposed on both the firm and its partners simultaneously for further consideration.

In conclusion, the High Court decided in favor of the Revenue, setting aside the appellate authority's order and remanding the matter for a fresh decision. The respondent was directed to appear before the Commissioner for a new decision in accordance with the law.