2014 (9) TMI 532 - HC - Central Excise

Demanding duty from the firm and penalties were imposed on the firm & partner both - Appellant signed the appeal memo filed by the firm & no separate appeal - Held that - there will be waiver or stay on recovery of balance penalty from the appellant. This order is passed because on taking instruction Mr. Shah states that out of ₹ 20 lakhs imposed as penalty on the appellant, a sum of ₹ 17 lakhs has been deposited with the Revenue. Upon production of proof to that extent, the Tribunal shall waive the condition of deposit of the remaining or balance sum of ₹ 3 lakhs. The appeal of the appellant shall then stand restored to file. It shall be heard together with the appeal filed by the firm. Both the appeals, thus, stand restored to file and they shall be disposed of on merits and in accordance with law - Decided partly in favour of assessee.

Summary

Issues involved: Partnership firm assessed for Central Excise Tax, imposition of penalty on partner, appeal process before Customs, Excise & Service Tax Appellate Tribunal, refusal of relief on stay application, quashing of Tribunal's order, substantial questions of law regarding maintainability of appeal and contradictory views on different appeals.

Analysis:

1. Partnership Firm Assessment and Penalty Imposition:
The judgment revolves around a partnership firm, engaged in manufacturing goods, being assessed for Central Excise Tax. The firm was alleged to have received a duty demand and a penalty was imposed on the appellant, a partner in the firm. The firm appealed against the duty demand and penalty, while the appellant did not file a separate appeal against the penalty imposed on him. The Tribunal insisted that the partner must independently file an appeal to challenge the penalty. However, the appellant had signed the firm's memo of appeal, affirming its contents. The court highlighted that a partnership firm cannot exist independently of its partners and, in matters of penalty, it may be imposed on a partner directly. The judgment criticized the Tribunal's hyper-technical view and emphasized that the Tribunal should hear both parties on the duty demanded and the penalty without mandating a separate appeal by the partner.

2. Quashing of Tribunal's Order and Substantial Questions of Law:
The High Court quashed the Tribunal's order, stating that the appeal raised substantial questions of law. The court admitted the appeal based on two substantial questions of law. Firstly, whether the Tribunal was justified in holding that the appellant's appeal was not maintainable. Secondly, whether the Tribunal was justified in taking contradictory views on two appeals filed by different persons against the same impugned order. The court found fault with the Tribunal's approach and set aside its order, paving the way for a detailed examination of the case on its legal merits.

3. Direction on Protection and Appeal Process:
After hearing both sides, the High Court directed that the protection granted by the Tribunal to the firm should also extend to the appellant. This meant that there would be a waiver or stay on the recovery of the balance penalty from the appellant. The court noted that a significant portion of the penalty had already been deposited with the Revenue. Upon providing proof of the deposit, the Tribunal was instructed to waive the requirement of depositing the remaining balance. Consequently, the appeal of the appellant was to be restored to the file and heard together with the firm's appeal. Both appeals were to be considered on their merits and in accordance with the law, with all contentions on merits from both sides being kept open for further examination.