TMI Blog2023 (3) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... this amount from the Appellant. The confirmation of Rs.2,09,704/- as Excise Duty to be paid as held by the Adjudicating Authority is infructuous and is set aside. From the order portion of the OIO, it is seen that the Adjudicating Authority has not given the option of payment of penalty @ 25% which he was required to do. The Tribunal Ahmedabad in the case of COMMR. OF C. EX., AHMEDABAD VERSUS KALPESH FOUNDERS ENGINEERS [ 2009 (7) TMI 1024 - CESTAT AHMEDABAD ] held that it was observed that when the Adjudicating Authority as also Commissioner (Appeals) acted illegally and contrary to the first Proviso to Section 11AC of the Act, and no option to pay penalty of 25% within 30 days was given to the assessee the fault lies with the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs.2,09,704/-. The seized goods were released provisionally on 15/01/2014 on execution of bond along with security deposit of Rs. 67,000/-. Show Cause Notice was issued to the Partnership firm seeking to know as to why the seized goods should not be confiscated and penalties should not be imposed on the firm. The Show Cause Notice was also issued to the partner Moinuddin Ansari seeking to know as to why penalty should not be imposed on him. After due process, the Adjudicating Authority passed the OIO No.04/AC/CE/BKP/KOL-III/2014- 15 dated 16/02/2015, wherein he confiscated the seized goods and imposed redemption fine of Rs.67,000/-. He also appropriated Rs.67,000/- towards redemption fine which has already paid as security deposit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication of the OIO. In this case, the Excise Duty was paid in the normal course itself. No amount on account of interest is payable therefore, if the option was given to them to pay the penalty @ of 25%, the penalty would have paid and closed the issue. On this issue, he cites the case law of Commr. of Central Excise, Ahmedabad Vs. Kalpesh Founders Engineers-2009 (248) E. L. T. 354 (Tri.-Ahmd.), wherein, the Tribunal had allowed the Respondent to pay the penalty @ of 25%. This decision was agitated by the Revenue before the Hon ble High Court and the Hon ble Supreme Court. The Revenue s Appeals were rejected at both these fora. 3. With regard to the personal penalty of Rs.2,09,704/- on Moinnudin Ansari, Partner of the firm, he su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld as under:- 5. Admittedly, the Original Adjudicating Authority had vacated the show cause notice in its totality. The demand of duty was increased and penalty was imposed by Commissioner (Appeals) vide his impugned order. However, the appellate authority never gave any option to the assessee to deposit the dues along with 25% of penalty within a period of thirty days from the receipt of his order. Provisos were the subject matter of consideration of their own lordships of Punjab and Haryana Court in the case of Commissioner of Central Excise, Rohtan v. JR Fabrics Pvt. Ltd. reported in 2009 (238) E.L.T. 209 (P amp; H) . After taking note of the Hon ble Supreme Court s judgment in the case of Dharmendra Textile Processors, it was obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vinod Kumar Gupta Vs. CCE-2013 (287) E. L. T. 54 (P H) have held as under:- 9. Having heard learned counsel for the parties, we are of the considered opinion that proprietorship firm or proprietor thereof cannot be treated as two different legal entities. Partnership firm is a firm in mercantile usage, however, penalty imposed on the proprietorship or partnership firms would mean penalty on the proprietor or partners therof, therefore, imposition of penalties one on the proprietorship firm and second on the proprietor would amount to imposition of penalty twice, which cannot be sustained in the eyes of the law. 11. Relying on this decision, the penalty on the partner Mr. Moinuddin Ansari is set aside. 12. The Appeals are partl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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