1989 (11) TMI 157 - AT - Central Excise

Summary

Issues:
1. Whether a partner and a partnership firm can jointly file a single appeal against a penalty imposed by a Collector.
2. Whether the principle of joint appeal applies when penalties are imposed on both the individual partner and the partnership firm for the same cause of action under a single order.

Analysis:

Issue 1:
The first issue addressed in the judgment is whether a partner and a partnership firm can jointly file a single appeal against a penalty imposed by a Collector. The advocate representing the appellants argued that the liability of each partner is individual and several under the Partnership Act. He cited relevant sections of the Partnership Act, emphasizing that partners are jointly and severally liable for acts of the firm. The Bench referred to a previous order allowing a joint appeal by a Hindu Undivided Family and its Karta, based on the same cause of action. The Bench concluded that since the penalties were imposed on both the partner and the firm under a single order for the same cause of action, a joint appeal was permissible under the CEGAT Procedure Rules and the principles of the Civil Procedure Code.

Issue 2:
The second issue examined in the judgment is whether the principle of joint appeal applies when penalties are imposed on both the individual partner and the partnership firm for the same cause of action under a single order. The Member (Judicial) analyzed the facts of the case, where the firm and the partner were alleged to have knowingly removed non-duty paid goods. The Collector found the allegation substantiated and passed a single order imposing penalties. The Member (Judicial) referred to Section 223 of the Criminal Procedure Code, allowing joint trial of accused persons for the same offence committed in the course of the same transaction. Drawing parallels, it was concluded that a joint appeal by both the firm and the partner was permissible, as the offences were the same and committed in the same transaction. The Member (Judicial) directed the appellants to amend the cause title to include the partner's name for the joint appeal.

In conclusion, the judgment allowed a partner and a partnership firm to jointly file a single appeal against penalties imposed by a Collector when the penalties were based on the same cause of action under a single order. The decision was supported by the principles of the Partnership Act, CEGAT Procedure Rules, and the Criminal Procedure Code, ensuring fair and efficient adjudication of the matter.