2019 (5) TMI 982 - AT - Customs

Imposition of penalty on the proprietorship concern - concealment of consignment 289.9 kg of ketamine hydrochloride was found - role of proprietor in the attempted unauthorised export of ketamine hydrochloride from Air Cargo Complex - HELD THAT - It is a settled legal position that the proprietor and the concern are not deferent entities. They are one and the same. It is not legally correct to impose penalty on the form while holding that the proprietor had no role in the affair at all - the penalty imposed on M/s. Neelkanth Exports is not maintainable and thus needs to be set aside. Penalty on Shri Khalil - HELD THAT - Shri Khalil was giving conflicting statements; Shri Khalil met Shri Mr. Simon many times; he facilitated the attempted export of restricted item. On-going through the record of the case, Shri Khalil did not submit anything to absolve himself of the allegations - Shri Khalil is not made of to be the main culprit and nothing has been placed on record to show as to how he was to be benefitted in the illegal export, the penalty imposed on Shri Khalil needs to be reduced - the penalty imposed on Shri Khalil reduced to ₹ 5 lakhs. Appeal allowed in part.

Summary

Issues:
1. Imposition of penalty on a proprietorship concern despite the proprietor being exonerated.
2. Imposition of penalty on an individual for involvement in illegal export activities.

Analysis:

Issue 1: Imposition of penalty on a proprietorship concern despite the proprietor being exonerated

The case involved the export of pomegranates where ketamine hydrochloride was found concealed. The Commissioner imposed penalties on various entities, including M/s Neelkanth Exports and its proprietor, Shri Ajay Vasan. However, the Commissioner found that Shri Vasan had no role in the unauthorized export. The Tribunal emphasized the legal principle that a proprietor and the concern are one entity and cannot be differentiated. Citing precedents, the Tribunal held that penalizing the firm when the proprietor had no involvement is legally incorrect. Referring to the case of Shah and Mehta, the Tribunal highlighted that a partnership firm, similar to a proprietorship concern, cannot possess a culpable mental state. Consequently, the penalty imposed on M/s Neelkanth Exports was deemed unsustainable and set aside.

Issue 2: Imposition of penalty on an individual for involvement in illegal export activities

Regarding Shri Khalil, who was penalized for his alleged involvement in the illegal export, the Tribunal noted conflicting statements and inconsistencies in his defense. Shri Khalil had interactions with the main accused and facilitated the export. Despite claiming no direct role, he admitted to certain interactions. However, the Tribunal observed that Shri Khalil was not the main culprit and no evidence suggested his direct benefit from the illegal export. Considering the circumstances, the Tribunal decided to reduce the penalty imposed on Shri Khalil to ?5 lakhs. Therefore, the appeal filed by M/s Neelkanth Exports was allowed, and the appeal by Shri Khalil was partly allowed with a reduced penalty.

In conclusion, the Tribunal's judgment addressed the issues of imposing penalties on a proprietorship concern and an individual involved in illegal export activities. The decision highlighted the legal principles regarding the liability of proprietors and concerns, emphasizing the need for consistency in penalizing entities based on their involvement. The reduction of Shri Khalil's penalty reflected a nuanced consideration of his role in the case.