1. These two appeals arise out of and are directed against the order bearing No. S/14-4-17/82 dated 20-9-1982 passed by the Additional Collector of Customs (Prev.), Bombay, by which he ordered absolute confiscation of the goods seized from the residence of the appellants and imposed a personal penalty of Rs. 20.000/- on each of them.
2. As these two appeals arise out of an order and as common facts are involved, they are disposed of by a single order. A copy of this order, however, shall be kept in each of the file.
3. The undisputed facts are that during the course of the search of the residential premises of the appellants who are husband and wife, the Preventive Officers seized the goods of foreign origin such as textiles, and cassette tapes collectively valued at Rs. 14,151/- C.I.F.and Rs. 42,453/- M.V. and the appellants were unable to produce any documents or could give any satisfactory explanation for licit importation or acquisition of the seized goods. During the enquiry the husband, namely, the appellant in Appeal No. 281 of 1983 admitted that he had been purchasing goods from Pakistani passengers and the wife stated in her statement that they were selling the goods and that she was selling the goods only during the absence of her husband. By reason of these admissions the Additional Collector came to pass the impugned order. In these two appeals the appellants did not challenge the confiscation of the goods. They only contended that the imposition of penalty of Rs. 20.000/-on each of them is highly excessive, unjust and unreasonable.
4. For the appellants Shri Kapadia, the learned Advocate contended that both the appellants are very poor and the husband was already detained under COFEPOSA for 4 1/2 months. Further the prosecution is also pending against both the appellants. Besides, the C.I.F. value of the goods was only Rs. 14,151/- and the imposition of penalty of Rs. 40.000/- is disproportionate.
5. Shri Krishan Kumar, the learned J.D.R. however urged that the findings of the Additional Collector was that the appellants were indulging in smuggling and they have not learnt any lesson from the penalties earlier imposed on them for smuggling activities. He therefore submitted that the penalty imposed in these circumstances cannot be considered unreasonable or excessive.
6. The short point for our consideration is whether the imposition of penalty on the appellants by the Additional Collector requires to be interfered with. From the order of the Additional Collector it is seen that he had taken into consideration the previous involvements and the penalties imposed on the appellants for the alleged smuggling activities. He however has not set out the cases or the particulars of the proceedings in which the penalties were imposed on the appellants.
The learned Advocate for the appellants however admitted that in one case the husband, namely, the appellants in Appeal No. 281 of 1983 was involved in a smuggling case and a penalty of Rs. 4,000/- was imposed.
So far as the wife is concerned there was no previous case against her.
Shri Krishan Kumar admitted that there was no previous case against the wife. The order of confiscation and penalty was entirely based on the admissions made by the appellants. Now according to the statement of the wife the only part she has taken was to sell certain goods during the absence of her husband. She was not purchasing the smuggled goods nor she indulged in smuggling. In the circumstances the Additional Collector was not justified in imposing the same amount of penalty on both the appellants. He should have considered the part played by each of the appellants. He adopted a common yardstick which in the circumstances of the case was not correct. In the matter of imposition of penalty the gravity of the offence and the extent of participation on the commission of the offence assumes importance. Further, if there are any extenuating circumstances the same shall have to be taken into account. Admittedly the C.I.F. value is only Rs. 14.151/-. The Customs authorities have assumed that the appellants would have made 300% profit. Further, the facts disclose that the husband was detained under COFE-POSA for 4 1/2 months and the goods are absolutely confiscated.
The part played by the wife was only to sell certain goods during the absence of her husband In the circumstances we are of the view tbat the learned Additional Collector was not justified in imposing a penalty of Rs. 20,000/- on husband and another sum of Rs. 20,000/- on the wife. We consider it just and reasonable to reduce the penalty from Rs. 20,000/- to Rs. 15,000/- in the case of the appellant in Appeal No. 281 of 1983 and from Rs. 20,000/- to Rs. 5,000/- in the case of the appellant in Appeal No. 282 of 1983.
7. In the result these two appeals are allowed in part. The appellant shall be given consequential relief within 3 months from the date of communication of this order.