- (1.) THESE Appeals involve common facts and questions. For properly appreciating the arguments of parties, the facts in Customs Appeal No. 100/2012 are referred to. By this Appeal under Section 130 of the Customs Act 1962 challenging the order dated 7th May, 2012 of the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai, the following question of law is projected as a substantial question of law: - - Whether, the CESTAT has erred in imposing simultaneous penalties on both the Partner and Partnership firm?
(2.) HAVING heard the learned counsel appearing for the parties at some length, we are of the opinion that this question indeed is a substantial question of law. The facts necessary to appreciate this question are that the Appellants are, inter alia, engaged in the manufacture of textile machines. The Appellants applied for and were granted Value Based Advance Licence No. 03014593, dated 22 -11 -1996 against which the Appellants were, inter alia, permitted to import 248 pieces of ball bearings valued approximately at Rs. 9 lacs within the overall value of Rs. 50,05,468/. It is stated that sometime in February, 1997 the Appellants discharged their export obligation and therefore, the said licence became transferable. As the Appellants were not able to import any goods under the said licence for the initial validity period, the Appellants requested for extension of the validity period of the said licence. A part of the said licence was utilized by importing two consignments vide Bill of Entry filed in January, 1997 and August, 1998, respectively. The validity of the said licence was extended upto 21 -5 -1999 and the value thereof was reduced by the office of the Joint Director General of Foreign Trade, Mumbai to Rs. 43,41,140/ - leaving an unutilized balance of Rs. 27,32,557/ -.
(3.) THE information was received by officers of the Directorate of Revenue Intelligence, Mumbai Zonal Unit that several consignments of Bearings have been imported in the names of M/s. Hiral Overseas, M/s. Ankit International, M/s. Nippon Bearings Pvt. Ltd., M/s. M.M. Corporation, M/s. Nippon Bearings (India), M/s. S.N.M. Enterprises, M/s. Devanti Overseas and a few other firms. The bills of entry for all these goods have been filed by certain Custom House Agent. The clearance of the goods was sought against a duplicate Advance Licence No. 0111434, dated 22 -11 -1999 issued in the name of M/s. Amrit Laxmi Machine Works and transferred in the names of these firms and that this duplicate advance licence was issued against the original licence No. 03014593, dated 28 -11 -1996. The limits of this licence and terms thereof are referred to and it is alleged that in the light of information received, the bills of entry were collected, documents were scrutinized and which reveal details of the transaction. The details of good covered by another 29 bills of entry are referred to and in the light of further disclosures, what has been alleged is that M/s. Amrit Laxmi Machine Works, Khar, Mumbai, the licence holder and Shri N. Nagdutt Brahmachari, Director of the licence holding firm for the advance licence No. 0111434, dated 22 -11 -1999 read with licence No. 03014593, dated 28 -11 -1996 have caused the obtaining of the advance licence, duplicate copy of the advance licence, amendment to the list attached to the licence so as to cover the goods which were not used in the export product and made misrepresentation in obtaining duplicate copy of the licence. But, for the said licence being obtained in the manner in which it has been so obtained fraudulently, based on misrepresentation/false documents, the clearance of goods free of duty would not have been considered and allowed by the Customs. They have thereby abetted the doing or omitted the doing of such acts which have rendered the goods covered by this notice liable to confiscation under the provisions of Section 111 of the Customs Act, 1962. They have, therefore, rendered themselves liable to action under the provisions of Section 112(a) and/or Section 112(b) of the Customs Act, 1962.;