ORDER
S. Kalyanam, Member (J)
1. The Stay Petitions and appeal relating to Shri Kapoor Chand Shah Jain (G/Stay/526/91 and A. No. G/101/91 and C/Stay/527/91 and Appeal No. C/635/91) which stand posted to 18-11-1991 are preponed to this day, since they are connected with these Stay Petitions and appeals posted today and arise out of the same common impugned order.
G/Stay/436 & 526/91 & C/Stay/435 & 527/91
2. Since I propose to dispose of all the appeals today on a short question of law with the consent of parties, I grant waiver of pre-deposit of penalty pending disposal of the appeals today.
A. Nos. G/99 & 101/91 and C/506 & 635/91.
3. The appeals are directed against the common order of the Collector of Customs & Central Excise, Guntur, dated 9-4-1991 imposing a penalty of Rs. 50,000/- jointly on each of appellant under the provisions of the Customs Act, 1962 and the Gold (Control) Act, 1968.
4. Proceedings were instituted against the appellants, who are running a courier service at Bombay and Vijayawada, in connection with the seizure of 4 packets bearing consignment note Nos. 22305 to 22308 at Railway Station, Vijayawada, on 15-5-1989 on the ground that the packets contained gold ornaments as well as primary gold and the appellants herein, who are running a courier service, must have abetted the commission of the offence by being privy to the same by having knowledge about the contents of the packets in question when they agreed to have them transported in their courier service along with other goods.
5. Shri Sankaram, the learned counsel for the appellants, at the outset submitted that the impugned order suffers from a technical infirmity in that each appellant has been visited with a composite penalty of Rs. 50,000/- under the Customs Act as well as under the Gold (Control) Act without the amount being specified. Such imposition of composite penalty under the two enactments without specifying the quantum under each enactment will be legally unsustainable and the Tribunal has had occasion in similar circumstances to set aside such order as not tenable in law. The learned counsel, therefore, prayed that the order may be set aside.
6. Heard Shri Vedantham, the learned DR.
7. On going through the records, I find that a consolidated composite penalty of Rs. 50,000/- is levied on each of the appellants under the Customs Act as well as under the Gold (Control) Act. The operative portion of the order in para 41 reads as under:
“I, therefore, impose on them a penalty of Rs. 50,000/- each for contravention of the provisions of Customs Act, 1962 and the Gold (Control) Act, 1968 as aforesaid.”
Such composite penalty in one lumpsum in respect of the breach under two enactments on a person is not sustainable in law and the Tribunal on earlier occasions under similar circumstances has taken same view. The adjudicating authority should specifically apportion and name the quantum of penalty for contravention under each Act on each of the appellant as otherwise in a case if the appellate authority were to set aside the penalty under one enactment it would not be possible to decide the quantum and make the apportionment. Shri Sankaram also submitted that on merits there is absolutely no evidence against the appellants to impute any knowledge about the contents of the packets in question and penalty is levied merely on the basis of suspicion without any foundation on evidence. I am not expressing any opinion on the merits of the issue as I am setting aside the impugned order on grounds of technical infirmity set out above and it is open to the appellants to raise such contentions as are open to them under law as well as on facts before the adjudicating authority during re-adjudication. The impugned order is, therefore, set aside and the appeals are remitted to the adjudicating authority for re-adjudication of the issue in accordance with law.