Commissioner Of Central Excise & S.T., ... vs M/S. Pragati Fashions

(Arising out of OIA-RKA/752-753/SRT-I/2009 dated 19.10.2009, passed by Commissioner (Appeals) Central Excise, & S.T., Surat-I)

Commissioner of Central Excise & S.T., Surat : Appellant (s)

VERSUS

M/s. Pragati Fashions : Respondent (s)

Represented by :

For Appellant (s) : Shri Alok Srivastava, A.R. For Respondent (s) : Shri Willingdon Christian, Advocate

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 13.02.2015

ORDER No. A/10148 / 2015 Dated 13.02.2015

Per : Mr. P.K. Das;

Revenue filed this appeal against the order of Commissioner (Appeals).

2. Learned Authorised Representative for the Revenue submits that the Commissioner (Appeals) had given option to pay reduced penalty at the rate of 25% of the duty amount, under Section 11AC of the Central Excise Act. He submits that it is contrary to the decision of the Hon'ble Bombay High Court in the case of CCE, Raigad vs. Castrol India Limited  2012 (286) ELT 194 (Bom.). He further submits that Commissioner (Appeals) reduced the penalty on the partner of the partnership firm without giving any reason.

3. On the other hand, the learned Advocate for the Respondent submits that Hon'ble Gujarat High Court in the case of CCE, vs. Gohil Packaging Pvt. Limited by judgment dated 17.02.2010, in Tax Appeal No. 2545 of 2009, on the identical issue, rejected the appeal filed by the Revenue. The Hon'ble Supreme Court in the case of CCE, Ahmedabad vs. Gohil Packaging P. Limited in Special Leave to Appeal No. 30173/2010, rejected the appeal filed by the Revenue. On the other issues, the learned Advocate submits that the Hon'ble Gujarat High Court in the case of Pravin N. Shahvs. CESTAT  2014 (305) ELT 480 (Guj.) held that once the firm is penalised, separate penalty upon the partner is not imposable as the partner is not a separate legal entity and cannot be equated with employee of firm.

4. I find that the adjudicating authority had not given any option to pay reduced penalty, under Section 11AC of the said Act. So, this issue is covered in favour of the Respondent as held by the Hon'ble Gujarat High Court and upheld by the Supreme Court. The other issue regarding imposition of penalty on the partner, the Hon'ble Gujarat High Court held that no further penalty can be imposed on the partner as the firm is already penalised. In the present case, it is seen that penalty of equal amount of duty on the partnership firm was imposed under Section 11AC of the Central Excise Act.

5. In view of the above discussions, I do not find any merit in the appeal filed by the Revenue. Accordingly, the appeal filed by the Revenue is rejected.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

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