9911796707
TMI Blog2002 (4) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... of invoices or without any invoice; that without supply of documents and without making available the enquiry report from M/s. Coal India, an ex parte Adjudication Order dated 5-3-99 was passed confirming the duty and imposing penalty; that the Tribunal, vide Final Order No. A-837-40/99-NB, dated 25-8-99 [2000 (115) E.L.T. 805 (T)] remanded the matters on the ground of not following the principles of natural justice with a direction to supply documents and grant personal hearing; that the Commissioner, under the impugned Order No. 36/2000, dated 3-11-2000 has confirmed the demand of duty amounting to Rs. 51,51,960/- and imposed a penalty of equivalent amount of penalty on the Appellant Company besides imposing penalty on Rajesh Jain, Managing Director, B.D. Agarwal, Vice President (Commercial), A.K. Jain, Vice President (Production), and Ganesh Mathur, Managing Director of M/s. H.N. Explosives (P) Ltd. holding that no plausible defence had been advanced against the demand of duty, which was confirmed in that earlier order after examining incentive sheets and documents seized from the factory and residential premises and statements recorded and that there was no reason to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions made; that thus impugned order is liable to be set aside; that Section 11AB and Section 11AC cannot be invoked for the period when these were not in statute book. Reliance is placed on the decision in Marcanday Prasad v. CCE, 1998 (102) E.L.T. 705 which has been confirmed by the Supreme Court as reported in 1999 (107) E.L.T. A121 (S.C.) and CCE v. L.G. Equipments, 2001 (128) E.L.T. 52 (S.C.). 3. He also submitted that officers of the Appellant Company cannot be penalized because they are not the manufacturers; that it is only in prosecution cases, and not in Departmental proceedings, that both company and its officers are liable to be proceeded with; that such a necessity arose because a company cannot be sentenced to imprisonment; that, therefore, by Section 9AA of the Central Excise Act, offence committed by the company is attributable to its officers; that in Departmental proceedings, only monetary penalty is imposed which can be imposed on the company; that accordingly none of the officers of the Appellant Company who act as servants of the Company and, therefore, cannot act independently, cannot be visited upon with a penalty in the absence of a provision similar to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the manufacture with power consumption. He also mentioned that penalty on the Company both under Rule 57-I(5) and Rule 173Q for the same offence is unjustified and illegal; that it was not imposed under earlier Adjudication order dated 2-11-1998; that accordingly penalty of Rs. 10 lakhs imposed on the Appellate Company under Rule 173Q is liable to be set aside; that imposition of maximum penalty under Rule 57-I(5) is also not warranted. In respect of penalties imposed on the officers of the Appellant Company, the learned Advocate reiterated his, arguments. 5. Shri Bipin Garg, learned Advocate, for Shri Ganesh Mathur, submitted that Revenue had relied upon his two statements dated 17-3-98 and 16-5-98 which had been retracted by him on 18-3-98 and 18-5-98; that the goods received by them were duty paid and statutory records were maintained by them in the format 32 and 33 in respect of receipt and disposal of explosives and the same were duly checked by the Police Authorities; that consignment received under 5 invoices out of seven had been recorded in the records and said transaction had been admitted to be genuine and the goods had been admitted to have discharged the duty; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices for onward sale of Bel-Gelatin. Shri B.D. Agrawal, Vice President (Commercial), confirmed the non-receipt of Bel Gelatin in his statement dated 18-3-98. He had deposed that only the invoices were procured by them for the purpose of availing Modvat credit as they had been facing financial crisis and Bel Gelatin was not the raw material for use in the company. Shri M.L. Agarwal, Dy. General Manager of the Appellant Company had also deposed the same fact in his statement. We find that the Appellants have not rebutted the views expressed by the Explosive Department about non-use of Bel Gelatin in the manufacture of slurry explosives manufactured by them. Moreover, Shri A.K. Jain, Vice President (Production) had deposed in his statement dated 22-4-98 that it was not technically feasible to fix Bel Gelatin with the slurry as it resulted in the formation of different classes of explosives and had also confirmed non-receipt of the same in the factory. Further the Appellants have challenged the findings mainly on the ground that cross-examination of Mr. Mathur was not allowed. But as observed earlier, Mr. B.D. Agarwal has clearly deposed about non-receipt of Bet-Gelatin in his sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the goods knowingly that the Modvat credit was not available and the payment of duty by debiting Modvat credit taken wrongly makes the goods liable for confiscation. Accordingly, penalty is imposable on the officials of the company. However, we find that penalties imposed are on higher side. We reduce the penalties as under :- (i) Shri Rajesh Jain - Rs. 5 lakhs (ii) Shri B.D. Agarwal - Rs. 50,000/- (iii) Shri A.K. jain - Rs. 50,000/- 10. As far as appeals against impugned Order No. 36/2000, dated3-11-2000, is concerned, we find substance in the submissions of Shri P.C. Jain, learned Advocate that the impugned order is a non-speaking one as the Adjudicating Authority has not recorded any findings on his own. He has merely mentioned that as his predecessor, after carefully examining each and every aspect of the case had confirmed the demand and imposed penalties and no new facts had emerged before him, he finds no reason to interfere with the order passed by my predecessor. The Order No. 2/99 passed by his predecessor had been remanded by the Appellate Tribunal vide Final Order No. A/837-40/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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