9911796707
TMI Blog2006 (5) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... , imposition of penalty of Rs. three crore each on Shri C.U. Mangtani, Vice President, Shri R.M. Pherwani, Deputy Manager, Shri Vasu Ramsinghani, Chairman-cum-Managing Director, Smt. R.M. Gwalani, Ex. General Manager and Shri P.K. Upadhyay, Consultant of M/s. Rama Newsprints Paper Ltd. and penalty of Rs. 10 lacs each on Shri Jignesh Desai, Senior Assistant and Shri R.C. Bhardwaj, Senior Assistant of M/s. Rama Newsprints Paper Ltd. under Rule 209A, 210 and 226 of the erstwhile Central Excise Rules, 1944 represented by Shri V. Shridharan, Advocate. Another penalty of Rs. 50 lacs has been imposed on Shri V.D. Sharma, the retired Superintendent under Rule 209A and 210 of the erstwhile Central Excise Rules, 1944, who is being represented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either fabricated or otherwise. It was accordingly alleged that the credit of Rs. 12.85 Crores was taken only in around January, 1997. The show cause notice therefore sought to deny the credit of Rs. 12.85 Crores taken by the appellant and also proposed to impose penalty on the company and its various officers and charge interest on the appellant. The show cause notice was adjudicated by the Commissioner who vide his order in original dated 22-11-2005 has disallowed the credit of Rs. 12.85 Crores and imposed penalties on the company and its various officers as mentioned above. 3. The learned Advocate Shri V. Shridharan for the appellant submits that the credit of Rs. 12.85 crores taken by them has not been utilised till now and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Bill, 2001. There was an explanation attached to Section 132, which read as under : Explanation : For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. 5. It was submitted that as per this explanation no penalty was leviable in respect of any act or omission on the part of any person which would not have been so punishable, had this section not come into force. Since in the present case the show cause notice was issued in 1998 under the erstwhile Modvat credit rules, the proceeding under those rules could not have been continued but for this section and therefore as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not applicable as the appellant have not physically dealt with the goods. 6. Shri Suryanarayan, the learned Advocate for Shri V.D. Sharma submitted that Shri Sharma has carried out certain acts in his official capacity and was therefore entitled to protection under Section 40 of the Central Excise Act, 1944 and referred to the decision of the CEGAT in the case of A.P. Sales Anr. v. CCE, Hyderabad - 2006 (198) E.L.T. 309 (T.)=2006 (74) RLT 162 (CESTAT-Ban.) wherein it was held that penalty under Section 114 of the Customs Act, 1962 was not imposable on officers of customs for charge of dereliction of duty in absence of allegation of abetting or collusion with exporter and CHA and that customs officers are entitled to protection under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 38A which provides that amendment, repeals etc. will not affect any penalty, forfeiture etc. and therefore the explanation cannot over ride the substantive provisions of Section 38A. The penalties were therefore rightly imposed. As regard Shri Sharma it was submitted that there is charge of collusion against him duly supported by the statement of Shri P.K. Upadhyay and the appellant have not asked for cross-examination of Shri Upadhaya and therefore his statement cannot be discarded. 9. We have considered the submission. We find that the appellant have been able to make out a prima facie case in their favour inasmuch as the facts of the facts are squarely covered by the CEGAT decision in the case of Sunrise Structure Engg. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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