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TMI Blog2014 (2) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are situated beyond jurisdiction of adjudicating authority / the Commissioner of the Central Excise, Ahmedabad -I. In our view, the adjudicating authority has totally misread the provisions in as much as, he has recorded no findings on this specific averments, while it is admitted that sizing machines to come to existence, various parts are purchased by the appellant from outside and delivered by such sellers directly at the site of assembling. Appellants were informing the Department regarding the activities of manufacture of sizing machines / items thereof. We also find that appellant had informed the Department about the purchase of various parts which are required for erection / assembling of sizing machine at their customer’s p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duty be demanded thereof. The main appellant contested the show cause notice on limitations as well as on merits. The appellant also contested show cause notice on jurisdiction of adjudicating authority to decide the duty liability beyond its commissionarate. The adjudicating authority after following due process of law, did not agree with the contentions raised by the appellant, and confirmed demand, interest thereof, imposed penalties on all the appellants. 3.1. Ld. Counsel appearing on behalf of the appellants submitted that the appellants are not contesting the duty on warping machine. It is his submission that they are only contesting demand on sizing machines. He would then draw our attention to the facts of the case and submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported, hence extended period could not have been invoked. 3.3. He would submit that the appellant themselves have submitted letters to the authorities seeking clarification regarding for the way the clearances are effected by them, which include receipt of bought out items at the clients premises and on behalf of their client. He would submit that the lower authorities have erred on confirming the demands and imposing penalties. 3.4. It is also his submission that in the appellants sister concern case, the Commissioner of appeals in Order-in-Appeal No. 315 to 316/2009(AhdI)/CE/CMC/Commr(A)/Ahd/S/72 to 73 (A-I)/09 dated 27.10.2009, on an identical issue allowed the appeal of the sister concern in respect of the contentions that manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest on the amount of duty in respect of warping machine. Since there is clearance of warping machine with payment of duty appellant is liable to penalized under Section 11AC of Central Excise Act, 1944. We also hold that the appellant needs to be given the benefit of discharge 25% on the reworked duty amount as penalty, as per the provisions of Section 11AC of Central Excise Act, 1944. To that extent, the appellant of the appeal is disposed of. 9. On perusal of records, it transpires that the adjudicating authority has erred in coming to conclusion that he is empowered to the demand duty on sizing machines, which are assembled and comes into existence at the site of the buyers of the appellant which are situated beyond jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g machines. Since we have set aside the demand of duty on sizing machine, we set aside the penalties imposed on this count on assessee as well as partner. That we have upheld the demand on the appellant in respect of warping machine we do not propose to impose or uphold the penalty on the partner as Hon ble High Court of Gujarat has settled the law as to if the assessee / firm is penalized under law, the partner of the firm cannot be visited with penalties. The respectfully following the ratio has laid down, for the foregoing reasons penalties imposed on the partner of the firm who is also appellant before us, is set aside. 13. The appeals are disposed of as indicated hereinabove. (Operative part of the order pronounced in the Court) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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