2018 (1) TMI 370 – CESTAT KOLKATA – TMI – Clandestine removal – Sponge iron – credibility of the documentary evidence on which demand was raised – Held that: – the Department could not adduce any evidence to establish the clandestine removal of goods without payment of duty. There is no dispute that the assessee admitted the clearance of the goods – the imposition of penalty under Section 11AC of the Central Excise Act on the appellant company is justified.
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Penalty on Director – Held that: – the Director of the assessee company had admitted the clearance of the goods and paid the duty. There is no material available on record that the Director of the assessee company was involved in such clandestine removal of the goods – penalty set aside.
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Appeal allowed in part. – Excise Appeal Nos. E/76775/17 (C.O. 76173/17) & E/76776/17, E/76712/17(C.O. 76172/17), E/76713/17 – Final Order No. FO/75010-75013/2018 – Dated:- 4-1-2018 – Shri P. K. Choudhary, Hon ble Judicial Member Sri Anj
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g through the chart admitted the clearance of the goods without payment of duty and deposited a Cheque of ₹ 20.00 Lacs admitting the duty liability. A Show Cause Notice dated 26.05.2015 was issued proposing demand of duty along with interest and to impose penalty on the assessee and Shri Naresh Kumar Sharma, Director of the assessee company. The Adjudicating authority confirmed the demand of duty of ₹ 20,01,848.00 along with interest and imposed penalty of equal amount of duty on the assessee and also imposed a penalty of ₹ 5.00 Lacs on Shri Naresh Kumar, Director of the appellant company and also appropriated the amount of duty of ₹ 20,01,848.00 as deposited by the assessee. By the impugned Order the Commissioner (Appeals) upheld the confirmation of duty along with interest and modified the Adjudication Order to the extent that the penalty imposed on the assessee and its Director are set aside. Hence, the Revenue filed these appeals for imposition of penalty on
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e details of the consignment was sponge iron cleared from the factory of the assessee without issuing the Central Excise Invoices, is not under dispute. Therefore, there is no need to go into the facts of recovery of the said documents. In my considered view, the chart of Cash Sales is a primary evidence for clandestine removal of the said goods and therefore I am unable to agree with the finding of the Commissioner (Appeals). Accordingly, the imposition of penalty under Section 11AC of the Central Excise Act is justified. I find that the Director of the Assessee had admitted clearance of the goods on showing the chart and paid the duty. There is no material available on record that the Director of the Assessee was involved in such clandestine removal of the goods. Hence, the Commissioner (Appeals) has rightly set aside the penalty on the Director of the Assessee. 4) The brief facts of the Appeal Nos.E/76712/2017 (C.O.-76172/2017) and E/76713/2017 are that M/s. Jaishree Steels Pvt. Ltd
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on the assessee and also imposed penalty of ₹ 5.00 lacs on Shri Shyam Bihari Makharia, Director of the appellant company and also appropriated the amount of duty of ₹ 19,64,078/- has deposited by the assessee. By the impugned order the Commissioner (Appeals) upheld the confirmation of duty alongwith interest and modified the adjudication order to the extent that the penalty imposed on the assessee and it s Director are set aside. Hence the Revenue filed these appeals for imposition of penalty on the assessee and it s Director, the respondent herein. 5) I find that the Commissioner (Appeals) observed that the department did not undertake any further investigation to examine the involvement of the Director of the assessee company and also could not record any evidence of clandestine removal of the said goods and therefore he set aside the penalties imposed on the respondents. 6) It is also observed that the Department could not adduce any evidence to establish the clandestine
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