DEVENDRADAS NAUTANDAS AND CO. AND Vs. CC

JUDGEMENT

(1.) M /s. Devendradas Nautandas and Co. filed a bill of entry showing weight of dry dates imported in 500 bags as 30000 kgs. On weighment, an excess of 3500 kgs was found. The Managing Partner of the importing firm Shri Santramdas Makhija in his statement confessed that he had knowledge of the excess dates. He also confirmed that the clearing agents did not have any such knowledge. The clearing agents in turn denied his knowledge. A written show cause notice and personal hearing were waived. The Additional Commissioner confiscated the excess dates valued at Rs. l,05,000/ -M.V. but allowed redemption on payment of fine of Rs. 17,000/ -. He imposed a penalty of Rs. 10,000/ - on Shri Satramdas Makhija and of Rs. 25,000/ - on the firm. Against this order, the firm and the managing partner filed appeals. These were decided by the Commissioner (Appeals) vide the impugned order. Before the Commissioner (Appeals) the plea was taken that the excess was the result of moisture gain. It was also claimed that to compensate for tine dry dates, a small excess was packed by the supplier. It was claimed that the full consignment was not weighed but only a sample weighment was done. It was claimed that waiver of show cause notice could be made only before the adjudicating authority and not before the investigating authority. The plea was made that penalty could not be imposed both on the firm and the partner. Having made these submissions and claims, the advocate for the appellants pleaded that he would not press all these points provided imposition of penalty was dealt with as per law. The Commissioner (Appeals) observed that the moisture claim could not justify the extent of the excess weight. On this ground he upheld the orders of confiscation and fine. However, he held that in terms of the Tribunal's judgement in the case of Dedhia Jewellers , the firm not being a legal person, no penalty could be imposed upon the firm. On this contention he waived the penalty imposed upon the firm but sustained the penalty imposed upon the partner.

(2.) AGAINST this order, the firm have filed the appeal against the orders of confiscation and the partner has filed the appeal challenging the penalty. These appeal Numbers are C/331 /92 -Bom and C/332/92 -Bom. The revenue have filed appeal bearing No. C/319/94 -Bom challenging the belief of the Commissioner (Appeals) that the firm being not a legal person, no penalty could be imposed upon it. These three appeals arising out of the same impugned order are being taken up for disposal vide this common order.

(3.) SHRI Dhuru, the ld. Consultant argued that the details of the information leading to the seizure were not given to the present appellants. He claimed that it was not possible to weigh the entire consignment within one hour as disclosed in the panchanama. He claimed that the statement of the partner was taken under duress but conceded that it was not retracted thereafter. He also contested the belief of the Additional Commissioner that the importers had waived the issue of show cause notice as well as opportunity of being heard in person.