2017 (1) TMI 87 - AT - Central Excise

Clandestine removal - in denovo proceeding, the adjudicating authority had not considered certain evidences of resale of the Bags resulting into erroneous confirmation of demand. Assessee prays that the matter may be remanded to the adjudicating authority for re-consideration of the evidences and pass an appropriate order, accordingly - Held that - In the remand proceeding, all the evidences produced by the appellant were considered at length while recomputing the demand. The evidences now produced by the appellant, in my opinion, is repetition of the same and no new facts have been brought on record, whereby, the demand could be further reduced. Hence, their request for remand of the case of again, in my view, would not resolve the dispute but increase the life of litigation. Imposition of penalty on the partnership firm and on partner - Held that - penalty cannot be imposed both on partnership firm as well as on the partner in view of the judgement of the Hon ble Gujarat High Court in Pravin N. Shah s case 2012 (7) TMI 850 - GUJARAT HIGH COURT . Appeal partly allowed - the matter is remanded to the adjudicating authority for the limited purpose of extending the benefit of discharging 25% of penalty, subject to fulfilment of the conditions - decided partly in favor of appellant.

Summary

Issues: Appeal against demand notice for clearance of goods without payment of duty, penalty on firm and partner, consideration of evidences in denovo proceeding, imposition of penalty under Sec. 11AC of CEA, 1944, remand for re-consideration of evidences, benefit of discharging 25% of penalty, imposition of penalty on partnership firm and partner.

Analysis:
1. The appeal was filed against a demand notice for the clearance of goods without payment of duty, along with penalties on the firm and the partner. The initial demand was contested, leading to a remand for re-consideration of the computation of the demand due to the inclusion of Trading/Resale of goods. In the subsequent denovo proceeding, the demand was reduced, but penalties were upheld. The appellants argued that certain evidences were not considered in the denovo proceeding, leading to an erroneous confirmation of the demand. They also cited judgments to support their contention against the penalties imposed on the firm and the partner.

2. The Revenue argued that all evidences were duly considered during the denovo proceeding, and further remand would be futile. However, upon review, the Tribunal found that the evidences presented by the appellant were repetitive and did not introduce any new facts that could further reduce the demand. Despite this, the Tribunal acknowledged the appellant's eligibility to discharge 25% of the penalty under Section 11AC of the Central Excise Act, 1944, based on previous judgments. Additionally, the Tribunal agreed with the appellant's argument that penalties cannot be imposed on both the partnership firm and the partner, citing relevant case law.

3. Consequently, the Tribunal allowed the appeal filed by one party and partially allowed the appeal filed by the company, granting the benefit of discharging 25% of the penalty subject to fulfilling the prescribed conditions. The matter was remanded to the adjudicating authority for the limited purpose of extending this benefit. The appeals were disposed of based on the above terms, as per the operative part of the order pronounced in court.