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TMI Blog2018 (7) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... remises of the Appellant unit on 20.03.2004 and found 191 printed polyester sarees, certain stock of colour pigments binder, one power operated stirrer attached to 1HP Motor hung on simple chain, Pulse Polio printed banners on cotton fabrics. The officers detained the said sarees and the stirrer for further investigations and handed over to the appellant for safe custody. The Show Cause Notice dated 15.09.2004 was issued to the Appellant proposing to confiscate 191 sarees totally valued at Rs. 17,191/- under Rule 25 of CER, 2002 and to impose penalty under Rule 25 of CER,2002. Another show cause notice dt. 17.02.2006 was issued proposing to demand central excise duty of Rs. 1,70,108/- on the MMF fabrics printed and cleared during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption fine of Rs. 5000/- in lieu of confiscation of seized goods i.e. 191 polyester Sarees valued at Rs. 17,190/-. He also imposed penalty of Rs. 1719/- on M/s Neelam Prints under 25 Rule and penalty of Rs. 1719/- on Mr Iftikhar Ahmed, Proprietor under Rule 26. 3. The SCN dated 17.02.2009 was also adjudicated by the original authority vide OIO No. 3936 dated 31.10 2006 confirming duty demand of Rs. 1,70,108/- and appropriation of amount of Rs. 1,70,198/- already paid by the Appellant. A penalty of Rs. 1,70,108/- was also imposed on Mr. Iftikhar Ahmed, proprietor. 4. The revenue filed appeal against OIO No. 3848 dt. 30.11.2015 before the Commissioner (Appeals) on the ground that as per Rule 25 of CER, 2002 the assessee shall be liable to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be denied to them. Further the appellant were doing Job-work and recovering only the processing charges form their customers. No duty was recovered from them. In the circumstances cum-duty benefit may be granted to them. Further there cannot be double penalty on the appellants as well as its proprietor for same cause of action. He also submits copy of OIA No. MI/AV/208/2011 dated 19.04.2011 under which the appeal filed by the appellants against the OIO No. 3848 dated 30.11.2005 was decided and the Commissioner (Appeals) held that considering the facts that the proprietor and the firm are one and the same, the subsequent imposition of penalty on M/s Neelam Prints was not called for and accordingly set aside. Further as the SCN has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble pump using power for the purpose of processing the MMF in his unit. It proves that the appellants were using power for processing their products and hence are not eligible for the exemption. Our above view supported by the Tribunal Judgments in case of NEHALI Versus COMMISSIONER OF C. EX. & CUSTOMS, VADODARA-I - 2009 (242) E.L.T. 271 (Tri. - Ahmd.). 9. As regards penalties imposed we hold that considering the facts that the proprietor and the firm are one and the same, the imposition of penalty on M/s Neelam Prints as well as proprietor Shri Iftikhar Ahmed was not called for. Therefore, the penalty of Rs. 1,70,108/- imposed on Shri Iftikhar Ahmed under OIO No.3936 dated 31.10.2006 and upheld under impugned OIA is set aside. As regards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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