TaxTMI 
TaxTMI 
2007 (3) TMI 110
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....the Schedule to the Central Excise Tariff Act, 1985. On a surprise visit of the officers to the premises of the appellant on 21-8-97, the officers found shortage of MMF (P) than the recorded balance in the lot register and the grey challan. Detailed enquiry was conducted and on completion of investigation, show cause notice was issued to the appellants to show cause as to why duty should not be demanded on processed MMF (P) cleared clandestinely and penalty should not be imposed under the provision of Section 11AC on the firm and under Rule 209A on the partner of the company. The adjudicating authority on a detailed findings, vide Order-in-Original dated 13-3-2003 (received by the appellants on 31-3-2003) confirmed the demand, imposed equiv....
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....tity of the partner from the partnership firm. He relies upon the decision of the Tribunal in the case of Kamdeep Marketing Pvt. Ltd. v. CCE, Indore, as reported at 2004 (165) E.L.T. 206 (Tri.-Del.) and, in the case of Harish Dye. & Ptg. Works v. C.C.E. & C. , Surat-I, as reported at 2001 (138) E.L.T. 772 (Tri.-Mumbai). 4. Learned SDR on the other hand submits that, the appellants had admitted the clandestine removal of the processed MMF (P) which has been corroborated by the Revenue from the recipient of such clandestinely removed goods. It is his submission that the penalty on the partner is sustainable as he has been the man behind the whole exercise of clearing the finished goods without payment of duty. 5. Considered the submissi....
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....ction of clandestine removal is not sustainable. I find that the appellants have admitted their offence in their statements recorded on different dates under Sec. 14 of C. Ex. Act, 1944. The facts have also been admitted by the proprietor/authorised signatory/partners of the firms who were dealing in purchasing/selling grey fabrics and recipients of the finished MMF(P) in their statements recorded on different dates under Sec. 14 of C. Ex. Act, 1944 and they had never retracted their statement. I find that there are sufficient evidence in respect of alleged evasion of duty/clandestine removal of the goods and the adjudicating authority have correctly passed the order." 6. I find that the appellant has not brought on record any evidence t....
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....balance amount of duty Rs. 4,04,937/- is not payable as the appellants have produced evidence of payment of the entire amount of duty as confirmed, and interest thereon along with 25% of the amount of penalty on 29-4-2003 i.e. within 30 days as mandated by the first proviso to Section 11AC. In view of this, the balance amount of penalty (75%) imposed on the appellant firm is set aside and the appeal to that extent is allowed. 8. As regards the personal penalty imposed on the partner of the firm I find that the penalty has been imposed under proviso to Rule 209A of the Central Excise Rules, 1944. The Division Bench of the Tribunal in the case of Kamdeep Marketing Pvt. Ltd. (supra) as held as under :- "Personal penalty on partners/propr....