2015 (10) TMI 1196 - AT - Central Excise

Imposition of penalty - Undervaluation of goods - Clandestine removal of goods - Held that - Company having not challenged the confirmation of demand, the same has to be accepted based on the fact of clandestine activities. Further, we also appreciate the fact that the appellant who was an Executive Director of the company, was managing the day-to-day affairs of the company and there are three confessional statements, which are not retracted, on record to show his involvement - impugned order of the Commissioner already stands set aside by the Tribunal vide Final Order No. 1881/2004 dated 25.11.2004 as also by Final Order Nos. 1188 & 1189 dated 18.7.2005, by holding the same as violative of principles of natural justice. Learned A.R. has brought to our notice that the Revenue has subsequently filed ROM application before the Tribunal seeking clarification as to whether such setting aside of the order is only in respect of parties involved therein but no order on the said ROM application is available on record - impugned order of the Commissioner has merged with the earlier order of the Tribunal, referred supra and is non est . As such, we think it appropriate to remand the present appeal to the Commissioner for fresh consideration in the light of evidence available on record including confessional statements and also other factors - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Imposition of penalty under Rule 209A of Central Excise Rules, 1944 based on undervaluation of final products and clandestine removal of goods.

Analysis:
The appeal challenged the penalty of Rs. 8,00,000 imposed under Rule 209A of Central Excise Rules, 1944 on the Executive Director of M/s Universal Ceramics Ltd. The Commissioner confirmed duty of Rs. 19,22,492 against the company for undervaluation of final products and clandestine removal of goods, also confiscating goods from dealers' premises. The company did not appeal, and other appellants' cases were remanded due to a violation of natural justice. The appellant's delay in receiving the order was condoned, and it was argued that the order being bad in law applied to all involved appellants. The appellant sought a remand to the original adjudicating authority.

The Revenue argued that the appellant, as an Executive Director, was responsible for day-to-day affairs and admitted to clandestine activities and undervaluation in confessional statements. The Revenue supported upholding the penalty based on the appellant's role and statements. The Tribunal acknowledged the company's non-appeal, the appellant's role, and unretired confessional statements indicating involvement in clandestine activities.

The Tribunal noted that previous orders had set aside the Commissioner's order for violating natural justice, making the impugned order 'non est'. As the Revenue's application seeking clarification on the setting aside was inconclusive, the Tribunal remanded the appeal to the Commissioner for fresh consideration based on available evidence, including confessional statements. The appellant would have the opportunity to present their case before the original adjudicating authority. The appeal was disposed of accordingly.