- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CENTRAL EXCISE APPLICATION NO.3 OF 2003 ... The Commissioner of Central Excise Thane II ...Applicant v/s. M/s.S.K.Enterprises & ors. ...Respondents ... Mr.P.S.Jetly with Mr.A.S.Rao with Mr.Y.R.Mishra for the Applicant. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 13TH OCTOBER, 2008 P.C.: This application was admitted on 8th September, 2005 on the following question of law- - 2 - Whether the CEGAT is right in law in holding that penalty cannot be separately imposed on a partner and the Partnership Firm.? 2. In the present case the Tribunal having found that the duty involved is only Rs.19,000/- directed that the penalty imposed on the partnership firm be reduced from Rs.5,00,000/- to Rs.50,000/-. The Revenue has not come in appeal against that part of the decision of the Tribunal. The only question raised herein is whether the Tribunal was right in setting aside the penalty imposed upon the partners. The Tribunal has set aside the penalty levied on the partners on the ground that the Revenue has failed to produce any evidence to substantiate the explanation for levying the penalty against the partners. 3. The learned Counsel for the Applicant has placed reliance upon the decision of the Kerla High Court in the case of India Sea Foods v/s. Collector of Customs and Central Excise reported in (16) E.L.T. 243 and the decision of the Apex Court in the case of Prakash Metal Works v/s. Collector of Central Excise reported in 216 ELT 660. - 3 - 4. In both the aforesaid cases, the court was not called upon to decide the issue as to whether the quantum of penalty was mandatory on the partners as well as the firm and there was no discretion left in the authority. Therefore both the decisions are distinguishable on facts. 5. Thus in the facts of the case, the decision of the Tribunal in setting aside the penalty on the partner while sustaining the penalty on the firm does not give rise any question of law. Hence the application is dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)