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TMI Blog2018 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of excisable goods viz. printed cartons falling under Chapter Heading 4819 of Central Excise Tariff Act, 1985 and are availing the benefit of CENVAT credit on inputs, input services and capital goods. Based on the information received regarding clandestine clearance of the goods manufactured by a leading Gutkha manufacturing unit at Bangalore, the Department had conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 4,33,069/- on the value of unaccounted clearances of packing materials of Rs. 26,27,845/- along with interest and penalty. After due process of law, the adjudicating authority vide the impugned order confirmed the demand of Rs. 4,33,069/- for the value of unaccounted clearances of Rs. 26,27,845/- under proviso to Section 11A of the Central Excise Act along with applicable interest unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: Benu Ramesh Agarwal vs. CCE: 2014 (305) ELT 375 (Bom.) Universal Automobile & Ancillary Ltd. vs. CCE: 1991 (56) ELT 346 (Tri.) 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that there was joint appeal filed by the firm as well as the Managing Partner of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, 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 matter on the partner filing an appeal would not be just, fair and proper. The Tribunal ought to hear the parties both, on the point of duty demanded as also the penalty. It can segregate the issues and so far as the penalty is concerned, it can allow the parties to make submissions as to why imposition of penalty is unjustified or otherwise. That could be done even without the partner filing independent appeal and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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