TMI Blog2018 (10) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered that it is a sale from the appellant to its another unit. The Commissioner (Appeals) has not considered the grounds taken by the appellant regarding the limitation as well as revenue-neutral situation as pleaded by the appellant and has merely reiterated and accepted the Order-in-Original - also the decisions relied upon by the appellant regarding the bona fide and honest belief that they are entitled to cenvat credit and there is no intention to evade the duty, both the authorities have not considered these decisions. This case needs to be remanded back to the original authority for proper adjudication after considering all the grounds taken by the appellant - appeal allowed by way of remand. - E/20825/2018-SM, E/20658/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, it was revealed that the appellant has imported capital goods laser cutting machine from Japan and availed 50% cenvat credit of ₹ 13,15,837/- (Rupees Thirteen Lakhs Fifteen Thousand Eight Hundred and Thirty Seven only) on the said machine during March 2011. The said machine was put into use till August 2011 in the appellant s unit. Further, they have sold the said machine and transferred to their another Unit-II under invoice mentioning duty amount/liability of ₹ 26,31,673/- (Rupees Twenty Six lakhs Thirty One Thousand Six Hundred and Seventy Three only) (inclusive of cess and addl. duty) in the Invoice No. 456 dated 19.08.2011. The machine was cleared from Unit-l (appellant) on 19.08.2011 by debiting the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cleared on 19.08.2011 and was no more available at their Unit-I. In this regard statements of Shri. Jayaram, Accounts Incharge of Units I II and Shri Surendaran Thampi, one of the partners of the Unit l have been recorded under Section 14 of CEA 1944 wherein they confirmed short payment of duty and availment of ineligible credit. It appears that the appellants have contravened the Rule 3(5) of CCR, 2004 and Rule 8 of the CER, 2002 by clearing the capital goods to their Unit-II without payment of appropriate duty. Further, they availed ineligible credit of balance 50% in January 2013, when the capital goods were already sold by them in August 2011 and were no longer available with them. 1.3. On these allegations a show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the Commissioner (Appeals) has merely relied upon the Order-in-Original and has come to the conclusion that the Order-in-Original is proper without any discussion on the grounds raised by the appellants in their appeal. He further submitted that the Commissioner has not considered the request of the appellant to give them the relied upon documents while issuing the show-cause notice so as to effectively file the reply to the show-cause notice. He further submitted that the show-cause notice has been issued without proper investigation and the allegations are based on mere assumptions an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re really those of their individual partners Penalty imposed on proprietorship or firms means penalty on proprietor or partners In that view, second penalty on proprietor/partner would amount to imposition of penalty twice over, which cannot be sustained in eyes of law as reported in 2013 (287) E.L.T. 54 (P H). Further in another case the Hon ble Tribunal inter alia held in the case of Zenith Drugs Allied Agencies Vs. Commr. of Cus., Shillong that penalty Personal penalty on Managing Director/Partner of company/firm cannot be imposed simultaneously with penalty on company/firm as it amounts to double penalization Personal penalty set aside Section 114 of Customs Act, 1962 as reported in 2003 (160) E.L.T. 600 (Tri.-Kolkata). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred the capital asset from their Unit l to Unit ll by issuing an Invoice No. 456 dated 19.08.2011 but both the authorities have considered that it is a sale from the appellant to its another unit. Further I find that both the units belong to the appellant and there was technical lapse on the part of the appellant to avail the cenvat credit in Unit l but the same was reversed along with interest after the same was detected by the Revenue. Further I find that the Commissioner (Appeals) has not considered the grounds taken by the appellant regarding the limitation as well as revenue-neutral situation as pleaded by the appellant and has merely reiterated and accepted the Order-in-Original. Further I find that the statements recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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