2011 (7) TMI 689

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....nels, beams falling under Chapter 72 of Central Excise Tariff Act, 1985. On the basis of intelligence received by the DRI, indicating that Shri Bhaskar Parekh and Shri Kirit Doshi brokers of TMT/CTD and M/s. Channels & Structures were facilitating sale of these goods, cleared clandestinely without payment of Central Excise duty by other such manufacturers. Statement of the brokers and Shri Girish Jain were recorded and proceedings were initiated against the brokers and the appellant. While adjudicating the case, the lower adjudicating authority confirmed the duty demand of Rs.81,934/- and imposed penalty of equivalent amount on the assessee and imposed penalties of Rs.50,000/- each on the appellant and the partner of the assessee Shri Bhask....

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....sioner (Appeals) however the same were not considered.  5. The learned JDR vehemently argued that in the statement  dated 12.10.2006 the appellant admitted that the goods were cleared from his factory clandestinely without paying of Central Excise duty. He heavily relied up on the statement of Shri Girish Jain wherein he stated that Shri Bhaskar Parekh used to get in touch and used to order for materials. He placed reliance on the Hon'ble Supreme Court decision in the case of Prakash Metal Works vs. Collector of Central Excise., Ahmedabad - 2007 (216) ELT 660 (S.C.).  6. In his rejoinder the learned Counsel submitted that the partner in the case of Jai Prakash Motwani (supra) stayed at the factory whereas in the case in h....

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....ase law cited by the appellant in the case of Mona Dyeing and Printing Mills vs. CCE Surat - 2010 (254) ELT 141 (Tri. - Ahmd.)  wherein the Tribunal held that 'the learned Advocate pleaded leniency in view of the fact that the penalty under Section 11AC has been imposed on the firm and the payment of duty there made before issue of show-cause notice. Taking these facts into account we consider it appropriate to set aside the penalty imposed on the partner'. In the case of Mahendra Kumar Kapadia (supra) the Hon'ble High Court of Gujarat held that 'no separate penalty is imposable on the partner when penalty imposed on firm and role of partner not indicated in show-cause notice'. In the case of Jai Prakash Motwani (supra) the Hon'ble Hig....