Abhilasha Kumari, J.

1. The Appellant-Revenue is in appeal against the order dated 5-6-2007 rendered in a group of appeals by proposing the following question of law.

Whether in the facts and circumstances of the case, the Tribunal is justified in setting aside the amount of penalty levied/imposed on the partner of the firm on the ground that where a penalty is imposed on the firm, no separate penalty can be imposed on the partner

2. For the purpose of the present appeal, the impugned order of the Tribunal, made in Appeal No. C/1546/05, insofar as it deals with the imposition of penalty upon the Respondent, who is the partner of the Assessee-firm is relevant, and the discussion is, therefore, being confined to this aspect only, in keeping with the proposed question.

3. Briefly stated, the background facts are that M/s. Associate Plastics and Rayons, a 100% Export Oriented Unit (EOU), is engaged in the manufacture of man-made grey fabrics and Polyester Texturised Yarn (PTY). The officers of the Appellant visited the office of the Respondent-assessee on 25-8-2003 and upon physical verification of the stock, noticed a shortfall of 18900.00 kgs. of imported PTY. Various statements were recorded under the relevant provisions of the Customs Act, 1962. and show cause notice dated 29-1-2004 was issued. The Adjudicating Authority held the Assessee liable for payment of duty and also imposed penalty upon the Respondent, who is one of the partners in the firm. In appeal, the appellate authority upheld the Order-in-Original, regarding imposition of penalty. The matter was carried before the Tribunal by the Respondent, by filing an appeal, which was registered as Appeal No. C/1546/2005, against imposition of penalty under Section 112(b) of the Customs Act, 1962. The appeal has been allowed by impugned order.

4. Mr. Y.N. Ravani, learned Standing Counsel for the Appellant, has submitted that the Tribunal fell into error in setting aside the penalty imposed upon the Respondent, who is the partner of the firm. He has submitted that the penalty imposed on the Respondent is sustainable in law, as he has played an active role in the removal of goods from the Unit.

5. A perusal of the impugned order of the Tribunal as a whole, does not reveal that any specific role is attributed to the Respondent who is one of the partners in the firm, and there is no adjudication to this effect in the said order. The Tribunal has relied upon the Division Bench decision in the case of Jaybee Industries v. CCE, Gurgaon as reported in : 2004 (168) E.L.T. 316 (Tri.-Del.) to come to the conclusion that where a penalty is imposed on a partnership firm, no separate penalty can be imposed on any of its partners. It has been noticed by the Tribunal that the Respondent has been penalized and penalty has also been imposed upon the Assessee-firm for the outstanding duty, which is not permissible in law and, therefore the penalty imposed upon the Respondent, being a partner, is set aside. 6. The learned Counsel for the Appellant could not point out any provision in the Central Excise law, which treats a partnership firm as a separate excisable entity from its partners. Admittedly, a partner is not a separate legal entity and cannot be equated with the employees of a firm. Once the firm has already been penalized, separate penalty cannot be imposed upon the partner. The impugned order of the Tribunal does not suffer from any legal infirmity so as to warrant interference. In the absence of any substantial question of law, the appeal is dismissed.