TaxTMI 
TaxTMI 
2018 (10) TMI 1460
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....oner (Appeals) has rejected both the appeals and upheld the Order-in-Original. Since there is a common impugned order disposing of both the appeals therefore the present appeals are being disposed of by this common order. Briefly the facts of the present case are that the appellants are engaged in the manufacture of steel fabricated frames and stainless steel fabrication falling under Chapter 84 of Central Excise Tariff Act, 1985 and availed cenvat credit under the provisions of Cenvat Credit Rules, 2004. On the basis of intelligence gathered by the Department Preventive Unit, Bangalore II Commissionerate, the premises of M/s. Creative Design & Manufacturing, undertaking situated at Plot No. 283, 4th Phase, Peenya Industrial Area, Bangalore....
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....and Eight Hundred and Thirty Seven only) during January 2013 after the sale of the said machinery in 2011. The appellants in their Unit-ll, on receipt of the capital goods have already taken 50% of the cenvat credit of Rs. 13,15,837/- (Rupees Thirteen Lakhs Fifteen Thousand Eight Hundred and Thirty Seven only) on 19.08.2011 and remaining 50% on 31.05.2012. Thus it appeared that the appellant has not discharged the duty liability correctly while clearing the goods from their Unit-l and further incorrectly taken cenvat credit on the said machine at Unit-l when the machine was no more available in the factory premises, i.e. (A) the appellants paid Rs. 4,29,587/- (Rupees Four Lakhs Twenty Nine Thousand Five Hundred and Eighty Seven only) as aga....
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.... Further penalty under Rule 26 of the Central Excise Rules was proposed against Shri Surendaran Thampi, partner of the appellant. After following the due process, Additional Commissioner confirmed the following demands: • Demand of Central Excise Duty of Rs. 21,40,464/- • Demand of irregular cenvat credit of Rs. 13,15,837/- • Penalty of Rs. 21,40,464/- on M/s. Creative Design and Manufacturing • Penalty of Rs. 13,15,837/- on M/s. Creative Design and Manufacturing • Penalty of Rs. 10,00,000/- on Sh. Surendran Thampi, partner in M/s. Creative Design and Manufacturing • Appropriation of Rs. 8,24,623/- paid vide Challan No. 06 dated 22.01.2013 and No. 14 dated 08.02.2....
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....ax. Further the Commissioner has also not considered that the entire transaction is revenue-neutral situation as both the units belong to the appellant and appellant is a partnership firm and there is common balance sheet of the firm. He further submitted that both the authorities below have failed to note that there is no sale of capital goods. Further appellants have paid the amount equal to the credit availed in respect of the capital goods along with interest and thereby made good the credit erroneously availed and there is no loss to the Revenue in the entire process. He further submitted that the Commissioner has failed to consider that the firm and the partner are one and the same thing and imposing the penalty individually is totall....
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....3.2013 regarding their lapse and had paid the differential duty with interest. In support of the submission regarding the invoking of the extended period of limitation, the appellant has relied upon the following decisions: a. CCE, Cus. & ST., Daman Vs. N.R. Agarwal Industries - 2014 (300) E.L.T. 213 (Guj.) b. CC, C. Ex. & S.T., Indore Vs. ZYG Pharma Pvt. Ltd. - 2017 (358) E.L.T. 101 (M.P) 3.2. He has also relied upon the decision of this Tribunal in the case of M/s. Rajhans Enterprises Final Order Nos. 20703 - 20704/2018 dated 25.04.2018 wherein it has been held that no separate penalty is imposable to the firm as well as partners of the firm based on the ratio of the decision made in Benu Ramesh Agarwal Vs. CCE reported in 2014 (....