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TMI Blog2019 (1) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... nt surrendered its registration certificate on 18.09.2006 and obtained a new Central Excise Registration in the same premise in the name of M/s Manav Metal Industries w.e.f. 19.09.2006. The Central Excise Officers conducted investigation, wherein it was observed that the appellant during the period 2000-01 to 2006-07 involved in clandestine removal of their goods. To support their case, Revenue has made detailed investigation wherein the statement of Sh. Mahendra G Duggad was recorded. The records of the appellant were scrutinised and the investigation was also conducted with co-operative bank, it was contended that the appellant have issued parallel invoice for clandestine removal of goods. On verification of records, it was found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures as sales figures, he submits that merely on the theoretical calculation from the books, clandestine removal cannot be concluded. He also submits that it is settled law that no demand can be confirmed against partnership firm which has been dissolved. In support of his submission he placed reliance on the Hon'ble Supreme Court judgment in the case of M/s Jullundhur Vegetables Syndicate reported in 1966 (17) STC 326 (SC). He submits that the aforesaid ruling was followed by the Hon'ble Apex Court in the case of M/s Khushi Ram Behari Lai & Co. reported in 1967 (19) STC 381 (SC). This Tribunal also followed the hon'ble Apex Court judgment in the case of M/s D. Matai Vs. CCE- Mumbai reported in 2000 (126) ELT 1264. He submits that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 12.07.2009, it was admitted that goods were sold to the buyer but it was never admitted that these goods were cleared from the appellant factory after being manufactured. He submits that whatever clandestine removal alleged, the said goods were not manufactured by the appellant but it was trading activity of buying and selling of goods. He submits that the parallel invoice issued only to hide identity of manufacture but in fact the goods were not manufactured by the appellant. The goods purchased from the open market are deemed to have been duty paid, therefore, no further duty can be collected on the said duty paid goods. The department has not discharged the burden that the goods have been manufactured and cleared clandestinely. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot carried out manufacture operation, therefore, question of clandestine removal does not arise. He submits that the adjudicating authority has not considered the amount of central excise duty of Rs. 22,610/- already paid by the appellant as per audit report para 2, hence the same was required to be deducted; that similarly, the audit report for the same period has considered the amount of central excise duty of Rs. 1,21,119/-, therefore, the same was also required to be reduced. He further submits that the Ld. Commissioner has not considered the abatement towards burning loss to quantify alleged production. He submits that the demand is based on books/records of the appellant, since the appellant had surrendered the registration it was inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajnikant Ratilal Kadiwala 2009 (245) ELT 379 (Tri.Ahmd.) * N Chittaranjan 2017-TIOL-229-HC-MAD-CX * Amritlakshmi Machine Works 2016 (335) ELT 225 (Bom) 6. Sh. L. Patra Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 7. We have carefully considered the submissions submission made by both the sides and perused the records, we find that Ld. Commissioner has raised various issues such as, the adjudicating authority has not granted cross examination of the witnesses and other persons whose statements were recorded, the cum duty benefit was not considered. The some amount of duty already paid was not considered. In the present case it is observed that the statements recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments: * Mohd Amin A S Lakha 2012 (275) ELT 465 (Tri.Ahmd.) * Prakash Metal works 2007 (216) ELT 660 (SC) * Rajnikant Ratilal Kadiwala 2009 (245) ELT 379 (Tri.Ahmd.) * N Chittaranjan 2017-TIOL-229-HC-MAD-CX * Amritlakshmi Machine Works 2016 (335) ELT 225 (Bom) 9. The jurisdictional High Court of Gujarat also decided this issue in the case of M/s CCE, Vs. Jai Prakash Motwani 2010 (258) ELT 204 (Guj.), wherein it was held that when the penalty was imposed on the partnership firm, a separate penalty on the partner of said partnership firm need not to be imposed. Considering the said legal position, we set aside the penalty imposed upon sh. Mahendra G Duggad. 10. Accordingly, the appeal of Sh. Mahendra G Duggad bearing Appeal No. E/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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