- (1.)HEARD Prakash Shah, learned Counsel appearing on behalf of the appellant and Pradeep Jetly, learned Counsel appearing on behalf of the respondent. Perused the order passed by the learned Vice -President and Member (Judicial) of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai dated 29 -3 -2012 [ : 2013 (292) E.L.T. 479 (Tribunal)]. It is common ground that there is a partnership firm of which the appellant is the partner. That partnership firm is stated to be assessed for payment of Central Excise Tax. The partnership firm Sunil Forging & Steel Industries carries on business of manufacturing of goods - rods by using basic raw materials. The firm was receiving orders and therefore, the articles which it was using and supplying were classified by it under Tariff 7326 of the Central Excise Tariff Act, 1985. The firm's claim was examined under certain exemption notifications. However, the allegation is that the officers of the Headquarters (Preventive), Central Excise, Belapur, visited the premises of the firm, scrutinised the record, thereafter, a show cause -cum -demand notice dated 30 -3 -2009 was issued to the firm and equally the partners were called upon to show cause as to why penalty should not be imposed. A personal hearing was given and an order was passed by the Joint Commissioner of Central Excise termed as Order -in -original. The duty demand of Rs. 45,92,646/ - was confirmed and penalty of Rs. 20,00,000/ - was imposed on the appellant who inter alia was partner in the firm. The firm preferred an appeal before the Commissioner of Central Excise (Appeals) i.e. the First Appellate Authority. A personal hearing was given to the firm and on 5 -10 -2010 an order was made imposing penalty of Rs. 20,00,000/ -. The appellant is stated to have not filed any appeal against the order impugned and hence, the contention of the firm regarding penalty imposed on the appellant was found to be unsustainable. The firm filed an appeal against the order confirming the duty demand and penalty. The appellant also filed appeal to the extent it imposes penalty. Both these appeals were taken up before the Customs, Excise & Service Tax Appellate Tribunal, one by the firm and another by the partner viz. appellant before us. A personal hearing was granted on the stay application. On the stay application of the firm, unconditional stay was granted. Whereas in the application made by the appellant -partner, he has been refused relief on the ground that he did not approach the Commissioner (Appeals). In such circumstances, on application, no order was passed. Apprehending that the penalty which is imposed on him now will be recovered taking recourse to coercive means that the instant appeal has been filed.
(2.)THESE facts have been undisputed throughout. The Tribunal seems to have taken a view that unless and until the partner independently files an appeal, he or she cannot impugn the directions of imposition of penalty against the partner. Therefore, the individual partner must impugn it. Though, the individual in this case has failed to file separate appeal, however, it is equally undisputed that he has signed memo. of appeal of the firm as a partner. He has affirmed its contents. In such circumstances, a hyper technical view and by insisting on the appellant to file separate appeal, should not have been taken. It is too well settled to require reiteration that unlike a company, a partnership firm cannot have independent existence without that of its partners. In the matters of penalty, it may be that an order is passed against a partner and not an artificial legal entity, yet, insisting in every matter on the partner filing an appeal would not be just, fair and proper. The Tribunal ought to hear the parties both, on the point of duty demanded as also the penalty. It can segregate the issues and so far as the penalty is concerned, it can allow the parties to make submissions as to why imposition of penalty is unjustified or otherwise. That could be done even without the partner filing independent appeal and in the given facts and circumstances. We are, therefore, of the view that the order of the Tribunal in this case cannot be sustained. It is accordingly, quashed and set aside, because this appeal raises substantial questions of law. The same is therefore, admitted on the following substantial questions of law: -
(b) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal is justified in holding that appeal filed by the Appellant herein is not maintainable?

(c) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal is justified in taking contradictory views on two appeals filed by different persons against the same impugned order?

After hearing both the sides at length and with their consent we dispose of this appeal with a direction that the protection given by the Tribunal to the firm shall also be extended to the appellant, meaning thereby there will be waiver or stay on recovery of balance penalty from the appellant. This order is passed because on taking instruction Mr. Shah states that out of Rs. 20 lakhs imposed as penalty on the appellant, a sum of Rs. 17 lakhs has been deposited with the Revenue. Upon production of proof to that extent, the Tribunal shall waive the condition of deposit of the remaining or balance sum of Rs. 3 lakhs. The appeal of the appellant shall then stand restored to file. It shall be heard together with the appeal filed by the firm. Both the appeals, thus, stand restored to file and they shall be disposed of on merits and in accordance with law. All the contentions on merits, of both the sides are kept open.