TMI Blog2015 (9) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... ant No. 2 and 3 and was under compulsion. It is also noticed that the penalty was imposed on the partnership firm, so, the penalty on Shri Rashid Sadatali Saiyed (Appellant No.4) is not warranted. The Hon'ble Gujarat High Court in the case of Pravin N. Shah vs. CESTAT - [2012 (7) TMI 850 - GUJARAT HIGH COURT], held that separate penalty not imposable upon partner of firm because partner is not a separate legal entity and cannot be equated with employee of firm. In that case, the important question of law before the Hon'ble Court was, “Whether in the facts and circumstances of the case, the Tribunal was right in upholding the penalty of ₹ 10,00,000/- imposed on the appellants under Rule 209A of the erstwhile Central Excise Rules, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding M/s. Vandevi (Appellant No.5) under Central Excise invoices/ AR-3s against CT-3. It was found that no goods were physically received under CT-3 from M/s. Vandevi by the appellant and the goods were diverted into domestic market. Officers of DRI also searched the factory of M/s. Vandevi. A show cause notice dated 21.3.2005 was issued by the Additional Director General, DRI, Zonal Unit, Ahmedabad. Adjudicating authority confiscated 2,31,415.217 Kgs of Polyester Yarn and imposed redemption fine of ₹ 50 Lakhs in lieu of confiscation and also confirmed demand of Central Excise duty amounting to ₹ 34,86,256/- foregone on 231415.217 Kgs. of Polyester Yarn along with interest under proviso to Section 11A (1) of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at during the investigation by the DRI Officers, it was found that M/s. Sunshine Overseas (Appellant No.1) was procuring the duty free materials from M/s. Vandevi. It is seen from the adjudication order that Appellant No. 5, a 100% EOU had shown clearances of knitted grey fabrics weighing 210377.470Kgs to M/s. Sunshine Overseas (Appellant No.1) under CT-3s issued by Appellant No. 1, on papers only without physically despatching the same. DRI Officers drawn samples of the fabrics sought to be exported by Appellant No.1 and the fabrics were found to be of Dyed/ Printed fabrics of polyester of GSL ranging from 58.4 to 78. It is evident that Appellant No. 5, with connive of the other appellants sold the Polyester Filament Yarn required to manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that appellant No. 6 (Shri Sanjay Rattan Prakash Aggarwal), CEO of Appellant No. 5 was directly involved in the conspiracy and had admitted in his statements the fact of removal of goods. It is also established from the test reports of the Chemical Examiner that Appellant No.1 exported the inferior quality of goods. We find that the Appellants failed to counter the evidences placed by the Revenue to substantiate the illicit removal of goods by Appellant No.5 and the supply of goods was only a paper transaction. We also noticed that Commissioner (Appeals) has already reduced the redemption fine from ₹ 50 Lakhs to ₹ 30 Lakh. It is also noticed that appellant No. 5 and 6 evaded payment of duty and therefore, there is no reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the present case. It is submitted that it was the joint conspiracy of the appellants to remove the goods and to sale in the open market. Therefore, all the appellants are involved in clandestine removal of the goods. He relied upon the following decisions:- (a) CC, Mumbai vs. Vaibhav Exports - 2009 (244) ELT 527 (Bom.) (b) Surjeet Singh Chhabra vs. UOI - 1997 (89) ELT 646 (SC) (c) CCE, Madras vs. Systems Components Private Limited - 2004 (165) ELT 136 (SC) (d) Dr. Writer s Food Products vs. CCE Pune - 2009 (242) ELT 381 (Tri. Mum.) (e) Twenty first century Wire Rods Limited vs. CCE - 2010 (250) ELT 94 (Tri. Mum.) (f) Sunil Mittal vs. CCE - 2013 (289) ELT 441 (Del.) (g) Agarwal Trading Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quated with employee of firm. In that case, the important question of law before the Hon'ble Court was, Whether in the facts and circumstances of the case, the Tribunal was right in upholding the penalty of ₹ 10,00,000/- imposed on the appellants under Rule 209A of the erstwhile Central Excise Rules, 1944 now Rule 26 of the Central Excise Rules, 2001 . The Hon'ble Court answered to the question in favour of the appellant and set-aside the penalty on the partner. 10. In view of the above discussions, the appeals filed by M/s. Vandevi Texturisers (P) Limited and Shri Sanjay Rattan Prakash Aggarwal are dismissed. Penalty imposed on Appellant No. 1, 2 and 3 (M/s. Sunshine Overseas, Shri Haroon Razaq Chhaya and Shri Irfan Gulam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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