IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Custom Appeal No.7 of 2008 Date of decision: 22.10.2008 Commissioner of Customs Commissionerate, Amritsar -----Appellant Vs. Shri Gurdip Singh, partner M/s Chugh Exports -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N.MITTAL Present: Mr. Kamal Sehgal, Advocate for the appellant. Mr. Jagmohan Bansal, Advocate for the respondent. Adarsh Kumar Goel, J 1. The revenue has preferred this appeal under section 130 of the Customs Act, 1962 (in short, ‘the Act’) against the order dated 27.9.2006, Annexure A-3 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. 2. A Show Cause Notice was issued to the assessee alleging that it mis-declared items of export to avail higher export incentives in the shape of Duty Entitlement Pass Book. The item Custom Appeal No.7 of 2008 exported was “Crank Shafts for high speed compressor” but the same was declared as “Timing Shafts for Mercedes Truck”. 3. The adjudicating authority after giving due opportunity to the assessee held that the assessee attempted to evade the duty and goods imported against the documents issued in lieu of export, were held liable to confiscation and duty which had been exempted was ordered to be recovered with interest. Penalty was also imposed on the exporter. Apart from penalty on the firm, personal penalty on partners was also imposed. 4. The appellate authority set aside the penalty on the ground that in the show cause notice, relevant clause of Section 112 of the Act was not mentioned, which vitiated the order. The same view has been taken by the Tribunal. 5. We have heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellant submitted that instead of substantial questions of law proposed in para 2 of the grounds of appeal, the following substantial question of law may be decided:- 2 Custom Appeal No.7 of 2008 Whether mere omission to mention the relevant clause of section 112 of the Act will per se vitiate the levy of penalty without any prejudice being shown? 7. We are satisfied that this question arises for consideration. 8. We are of the view that no prejudice has been shown to have been caused to the noticees by omission to specify relevant clause of section 112 of the Act and such omission could not per se vitiate the penalty. Learned counsel for the revenue has relied upon judgment of this Court in Custom Appeal No.8 of 2007 (Commissioner of Custom, Amritsar v. M/s ATM International, Jalandhar and others), decided on 23.8.2007, wherein also identical view was taken. 9. Learned counsel for the assessee has not been able to distinguish judgment of this Court in M/s ATM International (supra). 10. Accordingly, we decide the question in favour of the revenue and against the assessee. 11. Learned counsel for the assessee submitted that on merits, the penalty may not be called for and in any case, penalty 3 Custom Appeal No.7 of 2008 may be leviable on partners and not on the firm which was not a legal entity and was a combined name of the partners. He relies upon judgment of the Calcutta High Court in Tarak Nath Sen and others v. Union of India and others, AIR 1975 Calcutta 337. 12. Learned counsel for the revenue submits that under section 3(42) of the General Clauses Act, 1897,association of persons is also covered by the definition of “person” and, thus, the firm will also come within the purview of Section 112 of the Act. It may be a different matter whether penalty can be simultaneously on the firm as well as on the partners. This question does not arise for our consideration at this stage. We leave the question open to be considered by the appropriate authority. 13. In view of our answer to the question raised, we set aside the order of the appellate authority and remand the matter for a fresh decision in accordance with law. The respondent will appear before the Commissioner (Appeals), Customs and Central Excise, Chandigarh on December 22, 2008. 14. The appeal is disposed of. (Adarsh Kumar Goel) 4 Custom Appeal No.7 of 2008 Judge October 22, 2008 (L.N.Mittal) ‘gs’ Judge 5