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2023 (3) TMI 1007 - AT - Central ExciseLevy of penalty on partnership firm as well as on partner - Clandestine clearance - stocks verified at the premises of the Appellant did not tally with their DSA records and excess stock was found in the factory premises - HELD THAT:- The Appellant has been able to demonstrate that the seized goods which were provisionally released were cleared on payment of proper Excise Duty as it is evident from the documents produced like DSA, ER- 1 Returns, etc. Therefore, once the duty of Rs.2,09,704/- has already been paid in the normal course, the Department cannot be once again recover this amount from the Appellant. The confirmation of Rs.2,09,704/- as Excise Duty to be paid as held by the Adjudicating Authority is infructuous and is set aside. From the order portion of the OIO, it is seen that the Adjudicating Authority has not given the option of payment of penalty @ 25% which he was required to do. The Tribunal Ahmedabad in the case of COMMR. OF C. EX., AHMEDABAD VERSUS KALPESH FOUNDERS & ENGINEERS [2009 (7) TMI 1024 - CESTAT AHMEDABAD] held that it was observed that when the Adjudicating Authority as also Commissioner (Appeals) acted illegally and contrary to the first Proviso to Section 11AC of the Act, and no option to pay penalty of 25% within 30 days was given to the assessee the fault lies with the authorities and not with the assessee - Therefore, relying on this case law, option given to the Appellant to pay 25% of Rs.2,09,704/- as penalty. The Appellant should pay the same within the 30 days from the date of communication of this order. Penalty imposed on the Partner - HELD THAT:- The Hon’ble Punjab and Haryana High Court in the case of VINOD KUMAR GUPTA VERSUS COMMISSIONER OF CENTRAL EXCISE [2012 (5) TMI 173 - PUNJAB AND HARYANA HIGH COURT] have held that Partnership firm is a firm in mercantile usage, however, penalty imposed on the proprietorship or partnership firms would mean penalty on the proprietor or partners therof, therefore, imposition of penalties one on the proprietorship firm and second on the proprietor would amount to imposition of penalty twice, which cannot be sustained in the eyes of the law - the penalty on the partner Mr. Moinuddin Ansari is set aside. Appeal allowed in part.
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