At, Customs Excise amp Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONOURABLE MR. RAMESH NAIR
By, JUDICIAL MEMBER & THE HONOURABLE MR. C.J. MATHEW
By, TECHNICAL MEMBER
For the Appellant: Pooja Reddy, Advocate. For the Respondent: C. Singh, Assistant Commissioner (AR).
Ramesh Nair, Member (J)
1. This appeal has been filed by National Paper Agency being proprietorship firm of Ms. Binal Damji Boricha, daughter of Shri Damji K. Boricha, who was the earlier proprietor of National Paper Agency. The prayer in the appeal is only to waive the penalty of Rs. 10 lakhs imposed on the appellant.
2. Ms. Pooja Reddy, Ld. Counsel for the appellant submits that the imports in question were made during the period August to September, 2008 whereas Shri Damji K. Boricha passed away on 12-6-2008. Thereafter the daughter Ms. Binal Damji Boricha became the proprietor of the firm on 13-6-2008. The imports were made under the IEC No. 0397016671, which was issued in the name of National Paper Agency. She submits that the IEC was fraudulently obtained by some other importer who were the actual importer. Therefore, the penalty imposed on National Paper Agency, the name which was fraudulently used by the importer should not have been imposed.
3. Shri Chatru Singh, Ld. AC (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. We have carefully considered the submissions made by both sides. We find that as per the order, the appellant was National Paper Agency under IEC No. 0397016671 and relevant PAN No. ABYPVS160F. Accordingly, the National Paper Agency against whom the order has been passed is not the present appellant i.e. National Paper Agency, under the proprietorship of Ms. Binal Damji Boricha. Therefore, Ms. Binal Damji Boricha has no locus standi to come in appeal against the order passed against National Paper Agency, wherein the present appellant was not the proprietor. In case of proprietorship, the name of the proprietorship firm is considered as fictitious; the identity of proprietor is recognised. Therefore the proprietorship firm under the same name of different proprietor is different from the proprietorship of the same name of another proprietor. Therefore the National Paper Agency against whom the impugned order was passed is different from the National Paper Agency presently owned by Ms. Binal Damji Boricha. Therefore the apprehension of the appellant that the impugned order can be enforced on the present appellant does not carry any water. It is also made clear that the impugned order cannot be enforced on the present proprietor of National Paper Agency i.e. Ms. Binal Damji Boricha. However, the order is very much enforceable against the actual importers who fraudulently imported the goods by misusing the IEC and PAN No. of Shri Damji K. Boricha, for the reason that the import was made in August and September, 2008. During the said period, Shri Damji K. Boricha was not alive as he expired on 12-62008. This clearly shows the actual importer are diff
Please Login To View The Full Judgment!
erent and the order should be enforced against such actual importer. 5. Since we made it clear in the discussion hereinabove that this order is not enforceable against National Paper Agency, proprietorship of Ms. Binal Damji Boricha, the appeal stands infructuous; hence disposed of accordingly.