TMI Blog2018 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ent ORDER Per : S. S. Garg The appellants have filed these two appeals directed against the common impugned order dated 26.12.2017 passed by the Commissioner (A), whereby the Commissioner (A) has allowed the appeal of the firm M/s. Rajhans Enterprises but dismissed the appeal of the Managing Director Shri A. Ravindranath on whom penalty of ₹ 1,10,000/- was imposed under Rule 26 of Central Excise Rules, 2002 only on the ground that no separate appeal has been preferred by the Managing Director of the firm. Since the issue in both the appeals is identical, therefore, both the appeals are being disposed of by this common order. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said period clearly revealed that an amount of ₹ 97 lakhs was paid to the appellant. Shri Sohanraj Mehta also agreed in his statement given before the Income Tax Authorities that the amounts shown in the table are related to clandestine removal of goods and payments made in respect of such clearance. Based on case materials and documents seized by the Income Tax Authorities, Bangalore and the statements recorded by the Central Excise Officers, a show-cause notice dated 3.12.2012 was issued to the appellants alleging that a quantity of 19,31,715 Nos. of cartons were clandestinely cleared without payment of duty during the period from November 2007 to February 2008 to M/s. DIL, Bangalore demanding duty liability of ₹ 4,33,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no concept of joint appeal and the Managing Partner has to separately file an appeal under Rule 3(1) and (2) of the sub-rules. It is his further submission that a joint appeal is very much permissible under law because it is a firm and not a company and in the case of firm, the appeal was filed challenging the demand on the firm as well as the penalty imposed on the Managing Partner of the firm. He also submitted that once the demand along with penalty has been set aside on the firm on merit, the penalty on the Managing Partner automatically goes and there is no need to file a separate appeal by the Managing Partner challenging the imposition of penalty. In support of this submission, he relied upon the following decisions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot impugn the directions of imposition of penalty against the partner. Therefore, the individual partner must impugn it. Though, the individual in this case has failed to file separate appeal, however, it is equally undisputed that he has signed memo of appeal of the firm as a partner. He has affirmed its contents. In such circumstances, a hyper technical view and by insisting on the appellant to file separate appeal, should not have been taken. It is too well settled to require reiteration that unlike a company, a partnership firm cannot have independent existence without that of its partners. In the matters of penalty, it may be that an order is passed against a partner and not an artificial legal entity, yet, insisting in every mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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