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TMI Blog1991 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that on the basis of an information that M/S. Assam Studio (holding trading licence No. 4 of 1987/88 from Shillong Municipal Board) are having in their stock for sale of a large quantity of illegally imported foreign-made photographic films (colour and black and white) and camera cells, flash gun, camera etc. The officers of the Customs and Central Excise, Hqrs. Prev. Unit, Shillong on the strength of the search warrant issued under Section 105 of the Customs Act, 1962 by the Assistant Collector (Prev.), Customs and Central Excise, Shillong, searched the business premises of M/s. Assam Studio, Shillong on 16-4-1988 in the presence of the witnesses. 2. As a result of the search, photographic films (colour) and photographic films (black and white), camera cells, flash gun etc. of foreign origin were recovered from a locked godown and some documents relating to prices and trading licence were also seized. The search resulted in the recovery of old and used foreign-made cameras, flash gun from the studio room. Shri Bikash Shome, the appellant, who was present in the premises could not produce any legal documents for the legal importation of the same. He gave a statement in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (47) E.L.T. 568. He also contended that as far as Assam Studio is concerned it is a proprietary firm. Therefore, the penalty could not have been imposed on the firm. As far as the penalty imposed on Shri Bidhan Chandra Dhar is concerned he contended that Shri Bikash Shome also looked after the Studio while Shri Bidhan Ch. Dhar was at the hospital. Therefore, for purchase of some films on behalf of Shri Bikash Shome Shri Dhar cannot be penalised. With respect to the goods at Serial Nos. from 27 to 34 he stated that they were mostly old stock and with respect to the goods at Part-11 of the Seizure List they were not possessed or taken of. He, therefore, contended that the penalty is not justified. As far as Shri Bikash Shome is concerned he contended that he purchased the films on good faith and no penalty can be imposed on him. 3. Shri M.N. Biswas, learned Senior Departmental Representative contended that the show cause notice was issued to the firm M/s. Assam Studio and it was received by the Firm. He also contended that during the adjudication proceedings the appellants had not produced anything to show that the appellant, Shri Dhar became the proprietor of the firm after the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the sides. I will first find out whether the imposition of penalty on M/s. Assam Studio is proper. In this connection, it is contended that Shri Bidban Chandra Dhar, the appellant is the proprietor of the firm - M/s. Assam Studio. The learned Consultant, Shri K.K. Bhattacharya relied on the decision of the Tribunal reported in 1987 (30) E.L.T. 782, wherein the Tribunal held that separate penalty on the proprietory firm was not justified. But the learned S.D.R. contended that there was no material to show that Shri Bidhan Chandra Dhar was the proprietor of the firm. On the contrary, his father s name was found to be the proprietor. But his father admittedly died in the year, 1984. Though the appellant Shri Dhar had not produced any Succession Certificate before the Adjudicating Authority the same is produced before this Tribunal. This goes to show that Shri Dhar is the proprietor of the firm. Even otherwise, there is nothing in the order of the learned Additional Collector, which he had discussed, to show that any other person other than Shri Bidhan Chandra Dhar is the proprietor, M/s. Assam Studio. In such circumstances, the imposition of penalty of Rs. 7,500.00 on the firm, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Chapter-IV-A of the Customs Act and the rules made thereunder. Provisions of Chapter-IV-A of the Customs Act cannot be applied to goods found in the residential premises in terms of Section 11G(1) except provisions of Sec. 110. The camera is stated to be old and used. This has not been rebutted by the department. The age of the camera has not been determined and it is doubtful in these circumstances whether the camera was acquired after the enforcement of provisions of Chapter-IV-A. Confiscation of old and used camera recovered from the residential premises of a person merely on the ground that the appellant herein is not a professional photographer is not valid. A camera can be acquired and be used not merely by a professional photographer but it cannot be used by even any other person. In these circumstances, it is not appropriate to confiscate the camera in question. Its confiscation is, therefore, set aside. In the result, the impugned order as a whole is set aside and the appeal is allowed with consequential relief to the appelant. It is seen from a perusal of the inventory report that all these goods are old goods. The age of these cameras has not been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c film (colour) and photographic film (black and white) of other than 120 and 620 roll size, can be made by all persons under OGL. It was therefore contended by Shri Bhattacharya that all these films can be imported under OGL. But Shri M.N. Biswas contended that some unknown person had sold these colour films to Bikash Shome, the appellant and that was at a lower price. In this connection, he also invited my attention to the officers questionnaire put forth before the appellant, Shri Shome on 18-4-1988 wherein in reply to the question No. 33 Shri Shome had confessed that he told his brother, Shri Bidhan Ch. Dhar, the other appellant about the purchase of the goods in question illegally and he did a wrong thing. As far as Question No. 35 is concerned Shri Shome clearly stated that they were purchasing film rolls from companies and they were doing the illegal business for one and a half years. He also stated that from last January, 1988 Shri Shome was looking after the business and he had also stated that he had purchased the illegal goods from several brokers without getting any document. He also used to pay them the prices gradually. He also stated that he had purchased from an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Shome had given a reply dated 28-11-1988 wherein it was stated that the officers had questioned him continuously and he had replied to all the questions under mental tension. But this retraction was made only on 28-11-1988. This is the statement given on 28-11-1988. The first statement was given by him on 16-4-1988. Therefore, the retraction is only an after-thought and much credence cannot be given to the same. This principle was clearly laid down by the Tribunal in the above-cited decision reported in 1986 (25) E.L.T. 811. Serial Nos. 1 to 20 of Annexure-IV are the goods obtained by the appellant, Shri Bikash Shome. In such circumstances, the confiscation of the goods in Annexure-IV(Part-I) is hereby confirmed. The confiscation of the goods in Annexure-IV(Part-II) is set aside. However, the appellants are given an option to redeem the goods confiscated on payment of a Redemption Fine of Rs. 5,000.00 (Rupees Five thousand only). In the circumstances, I hereby order that the appellants may redeem the goods so confiscated on payment of Rs. 5,000.00. The imposition of penalty of Rs. 5,000.00 on the appellant, Shri Bikash Shome is hereby confirmed. 8. The next question is wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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