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TMI Blog2009 (6) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of by this common order. The sole contention of the ld. advocate for the applicants is that the impugned order nowhere discloses any material to link the CHA and its Managing Director with the case of overvaluation of the goods by the concerned exporter and therefore, following the order passed by the ld. Member of the Tribunal in Stay Application No. 1000 1001/08 on 29-8-2008, all these applications deserve to be allowed and waiver in relation to the requirement of pre-deposit of the amount ordered to be paid under the impugned order should be granted. He has also further submitted that since February 2008, the applicants licence has been suspended and he would face severe undue financial hardship if the entire amount demanded under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai) and in the matter of S.G. Kaigaonkar And Others v. Gold Control Administrator reported in 1986 (23) E.L.T. 523 (Tribunal) in relation to the contention about the independent liability of the firm and the partner in relation to the penalty. The ld. DR. also submitted that the exporters found to be fictitious and in 2 of the matters, the issue involved pertains to over-valuation of the goods exported. 2. With reference to the decision relied upon by the ld. DR and particularly the decision of the Delhi High Court, the ld. advocate for the appellants submitted that there are various judgments contrary to the said judgments. However, he is unable to give any citation today besides that he was not aware of the decision of the Delhi Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner, importer or exporter, so that in any proceedings under this Act, the owner, importer or exporter of the goods shall also be liable as if the thing had been done by himself. (3). When any person is expressly or impliedly authorized by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes : Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any willful y act, negligence or default of the agent, such duty shall not be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e misdeeds or acts done by him on behalf of the CHA. The law in that regard is well clarified by the Delhi High Court. Prima facie we do not find any substance in the contention raised on behalf of the applicants. 7. As regards the liability to pay penalty by the firm as well as its partner, the Bombay High Court in Jupiter Exports case has clearly ruled that it is well settled that when the partnership firm is penalized, separate penalty cannot be imposed on its partners. 8. The Kerala High Court in India Sea Foods (Regd.) - 1984 (16) E.L.T. 243 (Ker.) while dealing with the issue regarding penalty has observed that - counsel for the appellant fairly realized that having regard to the terms and the language of Section 112(a) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent, the applicants have made out a prima facie case to grant waiver in relation to the separate penalty imposed upon the partner of the firm. However, as regards the other amount demanded from the firm, in the facts and circumstances in each of the cases, no prima facie case has been made out for waiver of deposit in that regard. As regards the contention of the financial hardship, the only ground which is sought to be raised is about suspension of the licence. Certainly, such a ground cannot be a justification for exercise of discretion under Section 129E of the Customs Act, 1962. Hence the applications are disposed of in the above terms while directing the appellant s firm to deposit the amount within a period of 12 weeks from today. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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