Decided on March 23,2015

Manohar Enterprises And Ors. Appellant
C.C. (Seaport -Export) Respondents

Referred Judgements :-



R. Periasami, Member (T) - (1.)BOTH the appeals are arising out of a common order against the imposition of penalty. Hence both are taken up together for disposal.
(2.)THE brief facts of the case are that based on a specific intelligence export container was detained and found 197.1 Kgs. of 'Ketamine Hydrochloride' valued at Rs. 70,00,000/ -, was concealed in the guise of 'Onions'. They were stuffed in plastic packets resembling onion in size. DRI issued show cause notice dated 12.05.2009 to main exporter and to other co -noticees including to the appellants for confiscation and imposition of penalty under Section 117 of Central Excise Act for the acts of omission and commission.
The Commissioner of Customs (Export), Chennai in his order dated 18.11.2009 absolutely confiscated 'Ketamine Hydrochloride' and imposed penalty on the exporter of Rs. 10,00,000/ -, Rs. 10,00,000/ - on the CHA firm M/s. Manohar Enterprises, Rs. 5,00,000/ - on Shri Muthuramalingam, partner of CHA and Rs. 1,00,000/ - on Shri Sivakumar, clerk of M/s. Manohar Enterprises. Only V. Manohar of M/s. Manohar Enterprises and Shri R. Muthuramalingam filed appeals against the penalty imposed on them.

(3.)THE representative for M/s. Manohar Enterprises and Shri Mohd. Ismail, Ld. Advocate representing Shri Muthuramalingam submits that the DRI after seizure and completing investigation issued show cause notice to the appellant under Section 117 of the Customs Act. Under this section the maximum penalty is Rs. 1,00,000/ - whereas the adjudicating authority has imposed Rs. 10,00,000/ - and Rs. 5,00,000/ -. He further relied para -24 of the order -in -original wherein it was clearly brought out that the entire modus operandi was carried out between the exporter R. Viswanathan and Shri Sivakumar, the clerk of the CHA company. The clerk had deliberately connived with the exporter and signed all the documents and also MOT. The CHA was not involved and the Shipping Bills were filed in their name. They have co -operated with the investigating agency and customs. He also submits that no action initiated under CHALR by the department. Regarding imposition of penalty on the CHA firm as well as on the partner they relied the decision of the Hon'ble High Court of Gujarat in the case of Pravin. N. Shah v. Cestat - : 2014 (305) ELT 480 (Guj.) and submits that once penalty is imposed on the CHA firm no separate penalty can be imposed on the partner of the firm.

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