TMI Blog2018 (6) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tribunal. Even before the Tribunal, the appeal was not confined to penalty but on the order passed by the Adjudicating Authority and confirmed by the Appellate Authority regarding confiscation of goods and confirmation of excise duty demand - This was thus, clearly not a case where the assessee had paid the duty even before issuance of show cause notice. The assessee therefore cannot claim waiver of penalty on this count - penalty upheld. Separate penalty on partners - Held that:- This Court in case of Jai Prakash Motwani, [2009 (1) TMI 501 - GUJARAT HIGH COURT] held that once penalty is imposed on the partnership firm, no separate penalty can be imposed on the partners - penalty on partners set aside. Appeal allowed in part. - R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority passed an order dated 29.03.2001, in which, he provided as under: ( 1) I order to confiscate the seized goods i.e. 644 pcs of Proc MMF admeasuring 60260.25 L.Mtrs v/a ₹ 1039257. However, the Mills may redeem these goods on payment of Redemption fine of ₹ 2,24,085/0 [Rupees two lakhs twenty four thousand and eighty five only] since the seized goods have been released provisionally on execution of B11 Bond for full value of the seized goods, backed by Bank Guarantee of ₹ 224085.00 and the same has not been produced before me during the proceeding as required in B11 bond, I order to enforce the B11 Bond and appropriate the Bank Guarantee furnished by the Mills for ₹ 224085.00 in terms of B11 Bond toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He dismissed the appeal by a detailed order. He noted that Ashokkumar Begani, one of the partners of the firm had admitted to the clandestine removal of the goods and discrepancy in the stock. This was also supported by the statement of one Gaurishankar Sharm, Authorized Signatory of the firm. None of these statements were retracted. 7. The appellants carried the matter in appeal before the Tribunal. It appears that in the appeal, the appellants had challenged all parts of the order including the confiscation of goods and imposition of duty and penalty. The appeal was heard in absence of the advocate of the appellants. The Tribunal examined all issues and upheld the orders passed by the excise authorities. 8. The appellant thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe Industries, reported in 2004 (165) E.L.T. 508 (Kar.). 10. The second contention of the counsel was that in any case, penalty having been imposed on the firm, no separate penalty could be imposed on the partners. In this context, he relied on the following decisions of this Court. I. In case of Pravin Shah v. CESTAT, reported in 2014 (305) E.L.T. 480 (Guj.). II. In case of Commissioner of Central Excise v. Jai Prakash Motwani, reported in 2010 (258) E.L.T. 204 (Guj.). 11. Before adverting to statutory provisions and legal contentions, we may recall, in the present case, upon a raid it was revealed that the manufacturers were involved in past clandestine removal of goods without payment of duty. Unaccou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not involving fraud etc. We are conscious that some of the Courts have extended such principle of waiver of penalty in the context of rule 173Q also when facts so justified and particularly when duty is paid even before issuance of show cause notice. 14. Payment of duty before issuance of show cause notice however carries an important connotation of the assessee not contesting the liability. Mere depositing the amount does not amount to payment of duty. Payment of duty would arise when the liability is accepted. This would have an important element of avoiding litigation. Ordinarily, the instances of payment of duty immediately upon being pointed out short payment would be cases falling outside fraud, willful misstatement etc. In eith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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