ORDER
P.K. Desai, Member (J)
1. Today only stay petition was listed for hearing. However, at the request of the ld. Consultant and with the consent of the ld. JDR, by granting waiver against the pre-deposit, the entire appeal is taken up for hearing.
2. The appeal is directed against the order in original No. 38/EX/94, dated 7-10-1994 passed by the Collector of Central Excise & Customs, Pune confirming the duty demand of Rs. 1,71,046 and imposing penalty of Rs. 75,000/- on the firm and Rs.10,000/- each on the partners. Their plant and machinery also ordered confiscation but allowed redemption on payment of fine of Rs.25,000/-.
3. Shri Limkar, the ld. Consultant, appearing for the appellants, submits that he is not arguing the appeal on merits and claiming only a liberal approach on the ground that the appellants right from the initial stage have admitted their mistake in non-compliance with the provisions of Excise Act and that they were in the initial stage of settling in the business and they were not conversant with the Excise law. They are also not challenging the duty which they have already paid even before the issue of the show cause notice. In his submission, therefore, this calls for lenient approach. He also pleads that when the penalty is imposed on the firm, individual penalty imposed on both the partners is not called for.
4. Ms. Bharati Chavan, the ld. JDR, for the Department, however, supports the order and submits that there is no scope for showing any leniency as the appellants have contravened the provisions of Excise law for not maintaining any account required for maintaining.
5. Considering the submissions made and going through the records, when the order is not challenged on merits, the factual position need not be gone into for that purpose. The appellants have admitted the contravention and have deposited the duty amount even before the issue of show cause notice. In that case, the absence of mala fide on their part can be taken into consideration for quantifying the amount of redemption fine and the penalty imposed. There does not appear to be any justifiable ground to impose separate penalty on the firm and the individual partners. In that case, the penalty imposed on the 2 partners is set aside. So far as the penalty imposed on the firm is concerned, considering the fact that they have already admitted the contravention and paid the duty even before the issue of show cause notice and they were at the initial stage of establishment of the business, some leniency is called for. In that view of the matter, penalty imposed on the firm is reduced to Rs. 50,000/-(Rupees fifty thousand only). So far as the redemption fine is concerned, there appears to be no justified ground to interfere with the same as the appellants have used them for manufacture of goods removed without duty payment and hence the same is sustained. Appeal is disposed of in the above terms. Consequential relief to follow. The stay petition may also be treated as disposed of in view of the disposal of the appeal itself.