Commr. of GST-Bolpur Versus M/s. Kunj Bihari Steel Pvt. Ltd., Shri Amit Kumar Agarwal
Central Excise
2018 (3) TMI 447 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 12-1-2018
Excise Appeal Nos. 76774, 76796 & 76797/17 & C. O. -76174/17 for E/76774/17 – Final Order No. F/75194-196/18
Central Excise
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 classifiable under Chapter 72 of the Central Excise Tariff Act 1985 . On 27.05.2014, the Officers of Directorate General of Central Excise, Intelligence (DGCEI), Kolkata Zonal Unit conducted a search at the Factory and Office premises of the Assessee including some other places. The said Officers also recorded the statement of Shri Amit Kumar
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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 statement, stated that he had knowledge of the clandestine removal of the goods. Therefore, the imposition of penalty on the Director of the Assessee by the Adjudicating authority is required to be restored. The Learned authorised representative drew the attention of the Bench to the relevant portion of the Adjudication Order.
7. The Learned Counsel
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ioned 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. The noticee submits that the Department did not examine the aspect of receipt of sale proceeds by the Noticee No.1 but I find that when the Director himself could not provide the details and admitted to the fact that there was clandestine removal, the said defence also does not have any merit.
In my view, if the Director of the Noticee No.1 who is the m
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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 liable to penalty under Rule 26 of Central Excise Rules, 2002.
In the absence of any evidence produced before me, I am unable to hold that the ratio of the various decision as relied upon Noticee would supply in this case.”
9. On the other hand, the Learned Commissioner (Appeals) observed that there is a lapse on the investigation by the Investigating
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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 of 2017 filed by the Revenue against the Assessee s Director is dismissed. Appeal No. E/76796/2017 as filed by the Revenue against the Assessee had already been covered vide Appeal No. E/76774 of 2017 and is accordingly dismissed as infructuous.
( Operative part of the order already pronounced in the Open Court on 12/01/2018 )
Case laws, Deci
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