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TMI Blog2011 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... priate orders in that regard. It is ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demanded under the provisions of Section 11AC of the Central Excise Act, 1944 (in short 'C.E. Act'). Interest under Section 11AB was also levied. Furthermore, personal penalty in the sum of Rs 10,000/- was imposed in all 3/4 cases. The adjudicating authority passed three separate orders-in-original, the details with respect to which are as follows: Name of the party Order-in-original no. & date M/s Hi-Tech 85/2000, 13.11.2000 M/s KSI 86/2000, 17.11.2000 M/s Jeet Enterprises 87/2000, 17.11.2000 5. Against the said orders-in-original appeals were filed with the Commissioner (Appeals), details of which are as follows: S. No. Appeal No. Name & Address of the Appellant 1 119/2001 M/s Jeet Enterprises, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 1) 2 120/2001 Shri Avtar Singh, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 2) 3 121/2001 M/s Kandhari Separator Industries, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter referred to as the Appellant No. 3) 4 122/2001 Shri Avtar Singh, 103, Naraina Industrial Area, Phase-I, New Delhi (hereinafter re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity Comes to Rs. 3,72,760/- As the period for which the duty liability arises is the financial years 95-96 to 97-98, penalty under Section 11AC is applicable only for a limited period, i.e., 1996-97 and 1997-98. Although the same came into effect from 28.09.1996, yet the duty demanded for the financial year 1996-97 falls fully within the purview of Section 11AC as the earlier part of the year is covered by the exemption limit. Thus, the penalty under Section 11AC read with Rule 173Q would get reduced substantially. I propose to reduce the said penalty under Section 11AC red with Rule 173Q to Rs 2,25,000/- against a duty liability of Rs 3,72,769/- which is to be deposited individually severally by the units/ partners. (It is noted that for the purposes of mandatory penalty under Section 11AC, the amount of duty not paid for the period 1996 to 1998 is the main consideration.) 6.10 Shri Avtar Singh in any case is concerned as dealing in the goods on which the duty was payable but was not paid. Since he is a partner not separate from the partnership firm, no separate penalty under Rule 209A is warranted against him. 6.11 It has been brought out that a pre-deposit of Rs 50,000/- has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity was given of making a representation in writing as to why property ought not to be confiscated or penalty imposed, followed by a hearing in the matter. Learned counsel submitted that since the show cause notice admittedly was not issued, the demand against KRC could not be sustained. 10. Having heard the learned counsels for the parties, we are of the view that in so far as the issue raised in the appeal filed by KRC, that no liability could be fastened on it as a show cause notice was not issued, is an issue which will have to be found in favour of the respondent. The reason is that the provisions of Section 11A of the C.E. Act are mandatory in nature, as held by the Supreme Court in Metal Forging (supra). The relevant observations in this regard are contained in paragraph 10 at page 245 of the judgment. For the sake of convenience the same are extracted hereinbelow: "….10. It is an admitted fact that a show cause notice as required in law has not been issued by the revenue. The first contention of the revenue in this regard is that since the necessary information required to be given in the show cause notice was made available to the appellants in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the manufacturer of the goods in issue, it would get the benefit of the SSI exemption notification number 1/1993. Based on this the duty, for the period March, 1995 to 1998, in the sum of Rs 3,72,760/- was calculated. A penalty was imposed under Section 11AC read with Rule 173Q, in the sum of Rs 2,25,000/- against duty liability of Rs 3,72,760/-. In respect of penalty appellants were held jointly and severally liable. As far as Avtar Singh was concerned, the Commissioner (Appeals) observed that since he was a partner no separate penalty could be imposed on him under Rule 209A. The sum of Rs 50,000/- paid in the form of pre-deposit by Avtar Singh on behalf of KRC was also directed to be adjusted against total duty liability as re-determined by him. In the aforesaid circumstances, it was incumbent on the Tribunal to decide as to whether the Commissioner (Appeals) had erred in clubbing the production/ clearances in the hands of ERC. 12. This aspect of the matter as indicated hereinabove, did not receive the attention of the Tribunal. In these circumstances, we are of the opinion that while no question of law is required to be framed as regards the issue which is: whether the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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