Customs, Excise and Gold Tribunal - Mumbai
Jag Prakash Synthetics vs Commissioner Of Cus. And C. Ex. on 21 July, 2003
Equivalent citations: 2003(89)ECC895, 2003(156)ELT805(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Appeals taken up for disposal, after waiving deposit, with consent of the departmental representative. The appellants are absent and unrepresented despite notice.
2. The appeals are against imposition of penalty under Rule 173Q of Rs. 50,000/- on Riddhi Siddhi Processors (Appeal E/1114) and penalties of Rs. 25,000/- and Rs. 10,000/- on Jag Prakash Synthetics (Appeal E/1112) and Atul G. Gandhi (Appeal E/1113) respectively under Rule 209A. Penalties have been imposed on the finding that Riddhi Siddhi Processors evaded duty payable on goods processed by it. The other two persons abetted the evasion. Atul Gandhi was at the relevant time partner in Riddhi Siddhi Processors and proprietor of Jag Prakash Synthetics.
3. The only common contention in these appeals is that, duty having been paid prior to issue of notice, penalty is not imposable. The decision of the single member of the Tribunal in Amritsar Crown Caps (P) Ltd. v. CCE - 2002 (140) E.L.T. 437 (T) = 2001 (46) RLT 169 and other decisions followed by it were cited in support. The departmental representative contends that in the light of the clear, words of the provisions of law, there is no justification to hold penalty cannot be imposed solely because duty has been paid before issue of notice, and says that the decisions cited require reconsideration.
4. Even in a case where an assessee, after evading duty, subsequently, on his own voluntarily tenders duty, it can only be said that he may be entitled to leniency in the matter of penalty. I do not find anything in the provisions of Section 11A or Rule 173Q or in any other provision of law which leads to the conclusion that in a situation in which duty has been paid by the assessee in the knowledge that the evasion of duty has come to the notice of the department, penalty is not imposable. Such a course of action cannot be justified. However, the decision in Amritsar Crown Caps (P) Ltd., and those following it, related to Section 11AC of the Act. I am here concerned with penalty under Rule 173Q. Hence, the ratio of these decisions will not apply.
5. This being the sole ground that is before me, I find no reason to set aside the penalties except that imposed on Atul Gandhi. Penalty could not be imposed on him as well as on Jag Prakash Synthetics of which he was the sole proprietor. In line with the numerous decisions of the Tribunal, it has been held that penalty could not be imposed on his capacity as partner of these processors as penalty has already been imposed on the partnership firm. I therefore set aside the penalty imposed on him. As far as the other two appellants are concerned, having regard to the value of the goods on which duty evaded of Rs. 2,29,507/- I do not find penalty imposed on them is incommensurate with the offence. Their appeals are therefore dismissed.
6. Appeal E/1113 allowed. Appeals E/1112 and E/1114 dismissed.