(1.) THESE are two appeals filed by the appellants against the orders passed by the Additional Collector of Customs and Central Excise, Shillong in Order No. COL/CUS/ADDL.COLLR/24/89 Dated 3-3-1989. In terms of that order he confiscated absolutely the goods seized in this case other than the goods detailed in Annexure-IV (part-II of the Seizure List) of the Inventory under Sections 111(d) & (p) of the Customs Act, 1962. He further confiscated the goods detailed in Annexure-IV and gave the appellants an option to redeem the goods on payment of a redemption fine of Rs. 5,000.00. He also imposed Personal Penalties of Rs. 7,500.00 on M/s. Assam Studio and Rs. 5,000.00 each on S/Shri Bidhan Chandra Dhar and Bikash Shome under Section 112(b)(i) of the Customs Act, 1962. The brief facts of this 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 the absence of any documentary proof for their legal acquisition. The said officers seized the same under Section 110 of the Customs Act, 1962, on a reasonable belief that the goods have been illegally imported into India in violation of Section 11 of the Customs Act, 1962 read with Imports (Control) Order No. 17/55 dated 7-12-1955 as amended and issued under Section 3(1) of the Imports and Exports (Control) Act, 1947 as amended and are liable for confiscation under Sections 111(d) & (p) of the Customs Act, 1962. The seized goods included photographic camera which falls under the purview of Section 11B of the Customs Act, 1962. The cameras seized were left to the custody of Shri Bikash Shome who was in-charge of the said Studio. Shri Shome was further interrogated on 18-4-1988. Thereafter, a show cause notice was issued to M/s. Assam Studio and these two appellants calling upon them to show cause as to why the goods should not be confiscated and why penalty imposed on them. Written replies were submitted and personal hearing was granted which resulted into the impugned order. The learned Consultant, Shri K.K. Bhattacharya appearing for the appellants contended that the goods at Serial Nos. from 1 to 20 are films procured by the appellant, Shri Bikash Shome while its proprietor, Shri Bidhan Chandra Dhar was in hospital. He contended that these are not notified goods and films are freely importable under OGL. He, therefore, contended that the burden has not shifted on to the appellants. He relied on the decision of the Tribunal reported in 1990 (48) ELT 56 in the case of Sukumar Mondal v. Collector. With respect to the goods at Serial Nos. from 21 to 34 he contended that there is nothing to show that these are smuggled goods. With respect to the goods at Serial Nos. from 1 to 17 of the Search List (Part-II) he contended that they were old cameras and other old goods and confiscation of the same under the Sections 111(d) & (p) is not correct. He relied on the decision of the Tribunal reported in 1988 (37) ELT 320. He contended that these cameras are professional equipments and they are outside the purview of Chapter-IV of the Customs Act, 1962. He also contended that since the goods at Serial Nos. from 1 to 17 of Part-II were not taken possession of by the Department their seizure is not in accordance with law and relied on the decision reported in 1990 (47) ELT 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-II 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.
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 death of his father. Therefore, he contended that on the availability of the materials the Adjudicating Authority has rightly imposed the penalty on the firm. As far as the Colour Films are concerned he contended that they are under OGL. But as far as the Black and White Film is concerned he contended that those are restricted items. It was also contended that the professional and the personal uses are not the same. In this connection, he contended that the decision of the North Regional Bench reported in 1988 (37) ELT 320 is not binding on this Bench and a different view may be taken in this behalf. It was his contention that Section 11G of the Customs Act, 1962 is not applicable hi this case as the goods in question are not for the personal use of the appellants. In order to apply Section 11G Shri Biswas contended that two conditions are necessary - (i) it must be for personal use of the person who owns the same; or (ii) it must be kept in the residential premises of the person for his personal use. It was also contended by Shri Biswas, learned S.D.R, that the appellant, Shri Bikash Shome produced these films at lower price for Rs. 30.00 whereas the price will have to be Rs. 45.00 per film. This only goes to show that the appellant, Shri Shome had smuggled the goods in question. He also could not produce any receipt in this regard. In this connection, Shri Biswas relied on the statement of Shri Bikash Shome, the appellant. Shri Biswas also submitted that the appellant, Shri Shome had told in his statement before the officers that he confessed his elder brother about the goods which he had purchased illegally and that he had done a wrong thing. He also contended that the appellant, Shri Shome also admitted that Question No. 31 that he had sold the films in his studio at a higher price. Shri Shome also submitted in answer to the Question No. 35 that he had been doing his illegal business for the last 1/2 years. In this statement given by Shri Shome on 18-4-1988 he had confessed all his answers against the Question Nos. 31 to 33 and 35 and also admitted that the payments were made by the shop in question. Shri Biswas also contended that the cameras at Serial Nos. 4,5 and 7 in Part-II of the List were the new ones and at Serial Nos. 15 & 16 the cameras are old ones. In such circumstances, he contended that the appeals may be dismissed.
(3.) I have heard both 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 Bidhan 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) ELT 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. Assam Studio is hereby set aside.;