TMI Blog2011 (7) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 173Q(1) - Substitution of penalties is not intended in any law or legal interpretations - Held that a personal penalty on the individual or partner is different from a penalty on the partnership firm provided the commissions or omissions of the partner are proved beyond doubt warranting a penalty if Act/Rule prescribes so in the instant case - Decided against the assessee. - E/733/10 - - - Dated:- 28-7-2011 - Hon ble Dr. P. Babu, Member (Technical) Appellant : Shri R.S. Sangia, SDR Per: Dr. P. Babu: This is an appeal filed by the Commissioner of Central Excise, Customs Service Tax, Daman against Shri Mohd. Amin S. Lakha, partner of M/s. Sai Texturisers, Daman of the order of the Commissioner (Appeals). Brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. As per the show cause notice issued, Shri Mohd. Amin S. Lakha was asked to show cause separately as to why a penalty should not be imposed upon him under Rule 209A. This Rule is as below: 209A. Penalty for certain offences.- Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater. A plain reading of the Rule will flag the following; a) any person b) anywa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is order has placed reliance on the decision of the Hon ble Bombay High Court in the case of Jupiter Exports (referred supra). I have gone through the judgment in detail. It also deals with the issue that when partnership firm is penalized, whether separate penalties can be imposed on the partners under Section 112 of the Customs Act, 1962 or not. The Hon ble Court has only made a fleeting remark at para 19 of the order which is as follows: 19.?Having heard the rival parties, no fault can be found with the view taken by the Tribunal. It is now well settled that when partnership is penalised, separate penalties cannot be imposed on the partners. 6. The case relates to improper importation of goods and partnership is penalised. Separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of the Income-tax Act, 1961. Whenever the legislature intends to treat the partners and the firm as separate entities it expressly provides for the same. This is apparent when one sees Section 140 of the Act which makes provision for Offences by companies . The Explanation below Section 140 which is relevant for the present purpose reads thus : Explanation - For the purposes of this section, -company means a body corporate and includes a firm or other association of individuals; and director , in relation to a firm, means a partner of the firm. 6.2. I have also gone through the judgment of the Hon ble High Court of Gujarat in the case of CCE Surat Vs. Mahendra Kumar Kapadia reported in 2010 (260) ELT 51 (Guj.) which cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious provisions, the law itself distinguishes the nature of violations and responsibilities of the firm and on the person for violations committed for the sake of justice. The personal penalty on person is different from the mandatory penalty imposed on the firm (emphasis supplied) under Rule 173Q(1). Substitution of penalties is not intended in any law or legal interpretations. 8. The facts and legal position being so, I conclude that a personal penalty on the individual or partner is different from a penalty on the partnership firm provided the commissions or omissions of the partner are proved beyond doubt warranting a penalty if Act/Rule prescribes so in the instant case. Therefore the original adjudicating authority is fully just ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
