Custom, Excise & Service Tax Tribunal
Cc, Amritsar vs M/S Friends Trading Company on 23 July, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI COURT NO. II Custom Appeal No. 512 of 2005-Cust. Br. (Arising out of Order-in-Original No. 07/2004 dated 27.4.2004 passed by the Commissioner of Customs, Amritsar) CC, Amritsar Appellant Vs. M/s Friends Trading Company Respondent
Appearance Appeared for Appellant : Shri Sunil Kumar, DR Appeared for Respondent: Shri Shubhankar Jha, Advocate Date of Hearing: 23.7.2009 CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER HONBLE MR. RAKESH KUMAR, TECHNICAL MEMBER Order No.dated.
Per D.N. Panda :
Revenues grievance is that penalty should be imposed on Shri Rajesh Kumar proprietor of M/s Parker Industries who utilised the DEPB credit and also on Friends Trading Co. The Adjudication was made on 27.4.2004 raising duty demand of Rs.1,40,149/-. That was subject matter of Appeal before the Tribunal in Appeal Case No. C/606/04-Cus. That Appeal was disposed on 4.4.2006 as reported in 2006 (202) ELT 611 (Tri.-Del.).
Against that order the Assessee had gone to Honble High Court of Punjab & Haryana in Appeal. Such Appeal was registered thereat as C/2/08. The Assessee lost its Appeal before the Honble High Court. Consequent upon Appellate order passed by the Honble High Court of Punjab & Haryana to the extent of dispute raised by the order of Adjudication got merged. But penalty is imposable. That not being done, Revenue is in appeal.
2. Ld. DR Shri Sunil Kumar submits that penalty of Rs. 1,40,000/- was imposed on M/s Parker Industries. But no penalty was imposed on Shri Rajesh Kumar who is proprietor of M/s Parker Industries. So also no penalty was imposed on Friends Trading co. Thus penalty on both these Respondents should be imposed. But entire argument of Revenue was opposed by Respondents on the ground that once penalty is imposed on M/s Parker Industries, no penalty can be imposed on its proprietor. Similarly when the learned Adjudicating Authority refrained to impose penalty on Friends Trading Co., no penalty can be imposed in Appeal of Revenue.
3. Heard both sides.
4. The show-cause notice categorically shows that proprietor of M/s Parker Industries was Shri Rajesh Kumar. Once the business concern itself has been made liable to penalty, there is no need to penalise its proprietor further. It is also curious to note that no such point was raised on this count when Tribunal decided the Appeal in the case reported as aforesaid. Revenues contention does not get support of law when there is already penalty of Rs.1,40,000/- has been imposed against the duty demand of similar amount. Any further imposition on the proprietor shall be disproportionate and that is not the sanction of law.
5. There is nothing in the order of Adjudication about imposition of penalty on M/s Friends Trading. There is no penalty specifically imposed on M/s Friends Trading in the order of Adjudication by the action of ld. Adjudicating Authority refraining himself to do so. He has not at all intended to impose penalty for good reasons considered by him. When there is no dispute by Revenue showing any cogent evidence for their proposition to levy penalty on this Respondent that cannot be done to adversely deal a Respondent. That was not pleaded in past. Accordingly, Revenues appeal is dismissed.
(Dictated & pronounced in open Court) (D.N. PANDA) JUDICIAL MEMBER (RAKESH KUMAR) TECHNICAL MEMBER RM