TMI Blog2007 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... n the duty. 2. The relevant facts that arise for consideration are that the appellant firm was engaged in the manufacture of MMF(P) falling under Chapter 54 of the Schedule to the Central Excise Tariff Act, 1985. On a surprise visit of the officers to the premises of the appellant on 21-8-97, the officers found shortage of MMF (P) than the recorded balance in the lot register and the grey challan. Detailed enquiry was conducted and on completion of investigation, show cause notice was issued to the appellants to show cause as to why duty should not be demanded on processed MMF (P) cleared clandestinely and penalty should not be imposed under the provision of Section 11AC on the firm and under Rule 209A on the partner of the company. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the personal penalty imposed on the partner of the firm it is his submission that the partner should not have been penalized as there is no separate identity of the partner from the partnership firm. He relies upon the decision of the Tribunal in the case of Kamdeep Marketing Pvt. Ltd. v. CCE, Indore , as reported at 2004 (165) E.L.T. 206 (Tri.-Del.) and, in the case of Harish Dye. Ptg. Works v. C.C.E. C. , Surat -I, as reported at 2001 (138) E.L.T. 772 (Tri.-Mumbai). 4. Learned SDR on the other hand submits that, the appellants had admitted the clandestine removal of the processed MMF (P) which has been corroborated by the Revenue from the recipient of such clandestinely removed goods. It is his submission that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,937/- on the appellant under Rule 173Q(1) of erstwhile CER, 1944 read with Sec. 11AC of CEA, 1944. 7. The appellant have contended that in absence of cogent evidence the action of clandestine removal is not sustainable. I find that the appellants have admitted their offence in their statements recorded on different dates under Sec. 14 of C. Ex. Act, 1944. The facts have also been admitted by the proprietor/authorised signatory/partners of the firms who were dealing in purchasing/selling grey fabrics and recipients of the finished MMF(P) in their statements recorded on different dates under Sec. 14 of C. Ex. Act, 1944 and they had never retracted their statement. I find that there are sufficient evidence in respect of alleged evasion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the penalty the balance amount of penalty imposed by the authorities need not be saddled upon the appellants. I find strong force in the contention of the advocate that the balance amount of duty Rs. 4,04,937/- is not payable as the appellants have produced evidence of payment of the entire amount of duty as confirmed, and interest thereon along with 25% of the amount of penalty on 29-4-2003 i.e. within 30 days as mandated by the first proviso to Section 11AC. In view of this, the balance amount of penalty (75%) imposed on the appellant firm is set aside and the appeal to that extent is allowed. 8. As regards the personal penalty imposed on the partner of the firm I find that the penalty has been imposed under proviso to Rule 209A of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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