Order date – 19 October 2022

 Facts –

• The appellant, Shri Rikabchamd V Mehta partner M/s. Metal Gems was imposed penalty on Rs.50,000 under Rule 26(1)in connection with the case of duty demand.
• Appeal filed by the appellant on the same was rejected on the ground of limitation as the appellant had filed the appeal after 87 days.
• Aggrieved, Appellant have filed an appeal.

Issue – 

• Whether the appellant can file appeal even after the time limit and penalty be imposed on partners ?

Order – 

• The Tribunal observed  that the learned Commissioner (Appeals) dismissed the appeal on the ground of limitation as the appeal was filed with an 87 days delay. As per section 35 of Central Excise Act, 1944, the time limit stipulated for filing appeal before the Commissioner (Appeals) is 60 days and there is a provision to condone the delay of 30 days.
• The Tribunal also find that even though the appellant filed appeal within 87 days which is within the condonable period, the learned Commissioner (Appeals) did not admit the appeal on the ground of time limit. The issue of condonation should be dealt with utmost leniency particularly in the present case under the common proceedings. 
• Considering this Tribunal’s decision dated 07.10.2022 in the case of M/s. Metal Gems, the penalty on the appellant is not sustainable. Moreover, the present appellant is a partner of M/s. Metal Gems. In case of partnership firm separate penalty on the partner cannot be imposed as held by the Hon’ble jurisdictional High Court of Gujarat in the case of JAI PRAKASH MOTWANI- 2010 (258) E.L.T. 204 (Guj.)
• Hence the appeal is allowed