Mukesh Mulji Shah Vs. Deputy Commissioner of Central GST – 2018 (362) E.L.T. 993 (High Court- Mumbai)

Partners are liable to pay only the past outstanding dues relating to the period for which they were partners in the partnership firm.

Facts- The petitioner was a partner earlier in a partnership firm. However, later on, he has retired therefrom. So long as he was associated with the firm and its business, any liability of the firm can be fastened on to him but the respondents/Revenue are seeking to recover an amount of penalty of Rs. 2,00,000/- (Rupees Two lakhs) levied on the petitioner as a partner of M/s. Mukesh Dye Works under the provisions of Section 209A of the Central Excise Rules, 1944. Though no show cause notice was addressed to the petitioner in his capacity as a partner, no order of adjudication was passed and there was therefore, no question of filing an appeal. Apart therefrom and assuming that in law, a partnership firm has no existence independent that of the partner and that the partner until his retirement or resignation continues to be liable, still, the firm challenged the order of adjudication in appeal. That order-in-original was set aside by the Tribunal. Thereafter, the demand of tax did not survive. If the demand of tax or the liability or debt in that behalf did not survive, there was no question of imposition of any penalty. Hence, the penalty also does not survive.

Held- The Hon’ble High Court on the basis of facts held that Once that order is set aside and in which it included a personal penalty of Rs. 2 lakhs, we do not see how the Department can pursue that demand by attaching the bank account of the petitioner. More so, the petitioner’s retirement from the firm with effect from 27th April, 1990 is undisputed. Therefore, the request to the petitioner to pay a sum which is of Rs. 2 lakhs, but as a penalty under the order-in-original which was set aside does not arise at all. All that the petitioner is liable to pay is the balance sum stated before us by Mr. Dharmadhikari. In the aforesaid circumstances, this writ petition is disposed of with a direction to the petitioner to pay the balance sum as computed above within a period of three months from today and report compliance to the Commissioner. In the event compliance is reported, the attachment of the bank account shall stand raised and thereafter, the petitioner shall operate the said bank account. In the event the petitioner fails to pay the same in addition to attaching the movables, even the immovable properties of the petitioner can be attached and sold in enforcement of the demand. Writ petition is disposed of.

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