2009 (1) TMI 501 - HC - Customs

Partner's penalty quashed where partnership already fined for imported goods shortage; partner not separate legal entity

HC set aside the penalty imposed on a partner for shortage of imported goods because the partnership firm had already been penalized for the same ... Imposition of penalty - Shortage of imported goods - Whether, the Tribunal is justified in setting aside the amount of penalty levied/imposed on the partner of the firm on the ground that where a penalty is imposed on the firm, no separate penalty can be imposed on the partner? - Held that: - The Tribunal has relied upon the Division Bench decision in the case of Jaybee Industries v. CCE, Gurgaon [2004 (3) TMI 152 - CESTAT, NEW DELHI] to come to the conclusion that where a penalty is imposed on a partnership firm, no separate penalty can be imposed on any of its partners. It has been noticed by the Tribunal that the respondent has been penalized and penalty has also been imposed upon the assessee-firm for the outstanding duty, which is not permissible in law and, therefore the penalty imposed upon the respondent, being a partner, is set aside. Admittedly, a partner is not a separate legal entity and cannot be equated with the employees of a firm. Once the firm has already been penalized, separate penalty cannot be imposed upon the partner. In the absence of any substantial question of law, the appeal is dismissed. Issues:Imposition of penalty on a partner of a firm separately when a penalty is imposed on the firm itself.Analysis:The High Court judgment involved an appeal by the Revenue against an order setting aside the penalty imposed on a partner of a firm. The Tribunal had allowed the appeal filed by the partner against the penalty imposed under Section 112(b) of the Customs Act, 1962. The case revolved around M/s. Associate Plastics and Rayons, an Export Oriented Unit, where a shortfall in imported goods was noticed during a physical verification. The Adjudicating Authority held the firm liable for duty payment and imposed a penalty on the partner. The appellate authority upheld the penalty, leading to the appeal before the Tribunal.The Revenue argued that the penalty on the partner was justified as he played an active role in the goods' removal. However, the Tribunal's order did not attribute any specific role to the partner in the firm. The Tribunal relied on a Division Bench decision to conclude that when a penalty is imposed on a partnership firm, no separate penalty can be imposed on any partner. The Tribunal found that penalizing both the firm and the partner for the same duty was impermissible in law, leading to setting aside the penalty on the partner.The Court noted that partnership firms and partners are not distinct legal entities under Central Excise law. Partners cannot be equated with firm employees, and once the firm is penalized, a separate penalty on a partner is not permissible. As no legal infirmity was found in the Tribunal's order, the appeal was dismissed for lack of a substantial question of law. The judgment clarified the principles governing the imposition of penalties on partners of firms in cases where penalties are already imposed on the firms themselves.