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TMI Blog1997 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal in this after the dissolution of the partnership firm, the appeal memorandum has been signed by only one of the partners and not by others. In this connection the learned Senior Advocate has pleaded that under similar circumstances, a Three Member Bench of the Tribunal has held in the case of Mentha and Allied Products, Sambhal v. CCE, Meerut reported in 1988 (33) E.L.T. 606 = 1985 ECR 1894 (T) that the proceedings would continue notwithstanding the dissolution and the appeal memorandum may be signed by one of the partners. In that case, the Tribunal took note of Section 47 of the Partnership Act and has held as under 8. The most relevant decision for the purpose of the determination of the point before us is that of the Hon ble Madhya Pradesh High Court in the case of Ghanshyamdas Chhotalal (AIR 1964 MP 161) and the provisions of Section 47 of the Partnership Act. There is no dispute that the liability created against the appellants by the department is for the period during which the partnership was in existence. If the assessment is not made and the tax amount is not determined before the dissolution of the firm, the liability to pay tax does not disappear. It contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n over all the assets and liabilities of the firm as on 15th May, 1994, the day of the dissolution deed and he has also undertaken to pay all the loans and outstandings. This undertaking of Shri Shanmuhasundaram by the deed of dissolution can be taken to be in the nature of an undertaking to all the partners for payment of the outstanding which may be there as on 15th May, 1994 and in respect of which the action is still continuing. The proceedings had been initiated by the Central Excise authorities before 15th May, 1994, and, therefore, the liability which had accrued as well as of what transpired before 15th May, 1994, can be taken to devolve on Shri A.R. Shanmuhasundaram by virtue of this dissolution deed. 5. In the above view of the matter, therefore, we hold that the Tribunal can take cognisance of the appeal on merit. 6. With respect to the demand as made, the learned Senior Advocate Shri Natarajan has pleaded that the learned lower authority has accepted the appellants plea for grant of Modvat credit in respect of the LAB (Linear Alkyl Benzene) which is held to have been purchased by them and utilised for the manufacture of Acid Slurry, the item in respect of which duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise v. Bata India Limited [1996 (84) E.L.T. 164] = 1996 (14) RLT 613 (S.C.) = 1996 (64) ECR 678 (SC). It was observed therein that unless it is shown by the manufacturer that the price of the goods includes an amount of excise duty payable by him no question of exclusion of the duty element from the price for determination of value under Section 4(4)(d)(2) will arise. In other words, if duty is payable by the manufacturer that will be eligible for deduction from the price. As has come out in the facts of this case, the price realised by the respondent was cum-duty price and as duty was leviable on the goods and had, in fact, paid pursuant to the impugned order passed by the Additional Collector of Central Excise, the deduction of the duty element claimed for arriving at the assessable value was justified. It will make no difference whether the duty amount has been paid by the assessee at the time of clearance of the goods or it was paid subsequently. 7. He has pleaded, therefore, that based on what he has pleaded above, the maximum amount that would become payable based on the findings against the appellants would, therefore, only be Rs. 54,45,129.88. 8. Referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s running a small scale unit and has fixed assets of over about 7.75 Lakhs and the fixed assets of another partner Shri Rangaswamy are of the order of about 18 Lakhs. He has therefore pleaded for fixing a nominal amount for pre-deposit. 9. The learned JDR for the Department, Shri Murugandy has pleaded that the learned lower authority has relied upon the evidence of the third parties viz., the Finance Manager of M/s. SWC, the records maintained by M/s. SWC and the statement of Mr. Rabik, the Manager of the Transport Company but also on Shanmuhasundaram s own statement. He has pleaded that the learned lower authority has taken note of the large financial transaction between the appellants and the 3 employees of M/s. SWC to whom Cheques/Drafts of large amounts running into lakhs have been given by the appellants. He has pleaded that the appellants tried to evade payment of duty on purchase of LAB without accounting for the same in their records and had indulged in large scale evasion of the duty. As to the availability of Modvat credit and cum-duty price, he has pleaded he leaves it to the Bench as to the benefit to be given in this regard. He has no instructions regarding the finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the amount recovered by the appellants by way of sales of the Acid Slurry in view of the case law cited by the appellants, prima facie can be taken to be cum-duty amounts. The demand, therefore, for that reason will also get reduced. As to the financial position of the appellants, we observe that apart from the affidavits filed by Shri A.R. Shanmuhasundaram, there is nothing on record to go by. The learned JDR has also no instruction with regard to the financial position. We, therefore, in the facts and circumstances of this case have to take note of the fact that the appellants prima facie had indulged in large scale unaccounted transactions and, therefore, the position as has been placed before us cannot be taken to be reflective of the correct position. In view of the matter, we hold taking note of the various abatements which might become available to the appellants and taking note of the various statements, amount that would become due from the appellant s if worst is held against them as per the submissions made by the Ld. Senior Advocate, that the ends of justice will be served if the appellants company is called upon to pre-deposit a sum of Rs. 45,00,000/- (Rupees Forty ..... 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