NIRANJAN H. DELIWALA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) On hearing both sides on the said stay application, the issue being small the appeal was taken up for disposal after granting waiver of pre -deposit of penalty of Rs. 2,50,000/ -.

(2.) The order in original dealt with three units, Fluid systems Incorporate. Rotodel Pumps and Gears Pvt. Ltd., and Dell Engineers Pvt. Ltd. as also with Niranjan Deliwala. Deliwala was the proprietor of the first named unit, Director of the second named unit and the Managing Director of the third named unit. Duties were confirmed from the three concerns and penalties were imposed upon them as also on the present appellant. The present appellant filed appeals against the order on behalf of the three Companies within the time prescribed. In each of the appeals in the proforma the penalty imposed upon himself was also mentioned. The appeal papers contained case law to support his contention that penalty under Rule 209A of the Central Excise Rules could not be imposed upon him. These appeals were filed on 15/02/2001. In the appeal memorandum before the Tribunal it is claimed that on being pointed out that he has to file a separate appeal for himself, he filed an appeal before the Commissioner (Appeals) before the Commissioner (Appeals) on 19/04/2001. The Commissioner (Appeals) dealt with his appeal separately and dismissed it on limitation observing that the explanation for the delay of about 50 days was not satisfied. The Commissioner (Appeals) observed that if he could file appeals for the units he could have filed appeal for himself within the stipulated period. The present appeal is against this order.

(3.) The fact that the present appellant holds three different capacities is established on record. A single penalty has been imposed upon him in all the three capacities. He being the proprietor of M/s. Fluid Systems Incorporated the appeal filed by Fluid Systems Incorporation should be dealt as with appeal filed by him. In fact he could not have filed a separate appeal. In that situation the observation of the Commissioner (Appeals) about undue delay, etc., does not sustain. Counsel for the appellant informs me that the Commissioner (Appeals) has already disposed off the appeal filed by the units vide order in -appeal No. 911 to 913/2001/Commr(A)/Raj.