2018 (3) TMI 447 – CESTAT KOLKATA – TMI – Clandestine removal – penalty u/s 11AC of the CEA 1944 – Held that: – It is well settled law that the judicial precedence would be applied in the context of each facts of the case. In the present case, the Assessee is not disputing the demand of duty on clandestine removal of the goods and therefore imposition of penalty u/s 11AC of the Central Excise Act is liable to be invoked – the imposition of penalty on the Assessee is required to be upheld.
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Appeal dismissed – decided against Revenue. – Excise Appeal Nos. 76774,76796 & 76797/17 & C.O.-76174/17 for E/76774/17 – Final Order No. F/75194-196/18 – Dated:- 12-1-2018 – Shri P. K. Choudhary, Hon ble Judicial Member Sri D. Haldar, A.C. (A.R.) For Appellant Sri Anjan Dasgupta, Advocate For Respondent ORDER Per Shri P. K. Choudhary Briefly stated the facts of the case are that 2. M/s. Kunj Bihari Steel Private Limited ( the Assessee ) is engaged in the manufacture and clearance of Sponge Iron
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he Order of confirmation of demand of duty along with interest and appropriation of the duty as already paid by the assessee. It has set aside the penalty imposed on the assessee and its Director. 4. The Revenue filed Appeal No. E76774/2017 against the Assessee and its Director. The Assessee also filed Cross Objection against the appeal of the Revenue. Further, the Revenue filed appeal No. E/76796/2017 against the Assessee M/s. Kunj Bihari Steel Private Limited and an Appeal No. E76797/2017 against Shri Amit Kumar Agarwal, Director of the Assessee. 5. Heard both the sides and perused the records. 6. The Learned Authorised Representative for the Revenue submitted that it is a case of clandestine removal of the goods which was admitted by the Assessee and also paid the duty upon detection by the department. So, imposition of penalty under Section 11AC of the Central Excise Act, 1944 is warranted. He further submitted that Shri Amit Kumar Agarwal, Director of the assessee company, in his
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ty. The Assessee has paid the duty on removal of the goods clandestinely. It is seen that the Assessee deposited the amount of ₹ 10.00 Lacs on 09.07.2014 and a further amount of ₹ 13,15,143.00 on 16.06.2015. The relevant portion of the Adjudication Order is reproduced below :- 5.5 It is seen from reply to question No. 6 to 9 of the above mentioned statement dated 29/09/2014, that Shri Amit Agarwal, Director of Noticee No.1 admitted the fact of selling of consignment of Sponge Iron to broker to get ready cash to meet day to petty expenses of the company and place of delivery was not recorded as the same was not known to them. He also admitted the fact of not entering the said quantity of Sponge Iron in Daily Stock Account. In view of the above facts, the contention of the noticee for not conducting physical stock verification and not conducting enquiry regarding receipt of sale proceeds to arrive at charges of clandestine removal of finished goods is not acceptable to me. Th
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ge iron by the Director of Noticee No.1 duty already paid by the Noticee is to be appropriated. They are liable to pay interest at appropriate rate in terms of Section 11AA and also to penalty under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002. Shri Amit Kumar Agarwal , Director [Noticee No.2], having control over the entire state of affairs of Noticee No.1 and having the deliberate knowledge and reasons to believe, actively participated in the entire scheme of unauthorised and unlawful clearance of finished goods from the factory o Noticee No.1 as evidenced from the records without payment of Central Excise duty. While rendering his statement dated 29.09.2014, Shri Agarwal has admitted that some consignments of Sponge Iron cleared from the factory for the period from 01.10.2013 to 08.05.2014 without issuance of Central Excise Invoice and without payment of Central Excise Duty. The act of Shri Amit Kumar Agarwal, Director rendered himself lia
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applied in the context of each facts of the case. In the present case, I find that the Assessee is not disputing the demand of duty on clandestine removal of the goods and therefore imposition of penalty under Section 11AC of the Central Excise Act is liable to be invoked as held by the Hon ble Supreme Court in various decisions. Accordingly, the imposition of penalty on the Assessee is required to be upheld. However, I agree with the submission of the Learned Counsel for the Assessee that there is no material available on record that Shri Amit Kumar Agarwal, Director of the Assessee had clear knowledge of the clandestine removal of the goods. In any event, the Director of the Assessee had co-operated with the Investigating Officer and paid duty and therefore, imposition of penalty on him is not justified. 10. In view of the above discussions, against the Appeal No. E/76774 of 2017 filed by the Revenue against the assessee is allowed, Cross Objection disposed off. Appeal No. E/76797 o
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