2018 (7) TMI 328 – BOMBAY HIGH COURT – 2018 (362) E.L.T. 993 (Bom.) – Attachment of Bank Property – penalty u/r 209A of the Central Excise Rules 1944 – petitioner retired from the firm but penalty was levied on the petitioner as a partner of M/s. Mukesh Dye Works – Held that:- Once that order is set aside and in which it included a personal penalty of ₹ 2 lakhs, we do not see how the Department can pursue that demand by attaching the bank account of the petitioner. More so, the petitioner's retirement from the firm with effect from 27th April 1990 is undisputed. Therefore, the request to the petitioner to pay a sum which is of ₹ 2 lakhs, but as a penalty under the order in original which was set aside does not arise at all. All that the petitioner is liable to pay is the balance sum stated before us by Mr. Dharmadhikari – petition disposed off. – Writ Petition No. 12216 of 2017 Dated:- 5-6-2018 – S.C. DHARMADHIKARI & SMT. BHARATI H.DANGRE, JJ. Mr. Hemant G. Dharmadhik
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ership firm has no existence independent that of the partner and that the partner until his retirement or resignation continues to be liable, still, the firm challenged the order of adjudication in appeal. That order in original was set aside by the Tribunal. Thereafter, the demand of tax did not survive. If the demand of tax or the liability or debt in that behalf did not survive, there was no question of imposition of any penalty. Hence, the penalty also does not survive. 4. As far as the past dues of the department is concerned from two bank accounts, a sum of ₹ 4,74,000/has already been appropriated or adjusted by the Revenue and the balance sum is of ₹ 7,76,708/which the petitioner will pay in a period of six months, but on payment, the attachment be raised. 5. On all these factual matters and aspects, we do not find that in the affidavit in reply, the respondents have brought material controverting it. In fact, it is stated that an order in original was passed confirm
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was set aside by the Tribunal. 6. Once that order is set aside and in which it included a personal penalty of ₹ 2 lakhs, we do not see how the Department can pursue that demand by attaching the bank account of the petitioner. More so, the petitioner's retirement from the firm with effect from 27th April 1990 is undisputed. Therefore, the request to the petitioner to pay a sum which is of ₹ 2 lakhs, but as a penalty under the order in original which was set aside does not arise at all. All that the petitioner is liable to pay is the balance sum stated before us by Mr. Dharmadhikari. 7. In the aforesaid circumstances, this writ petition is disposed of with a direction to the petitioner to pay the balance sum as computed above within a period of three months from today and report compliance to the Commissioner. In the event compliance is reported, the attachment of the bank account shall stand raised and thereafter, the petitioner shall operate the said bank account. In t
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