9911796707
TMI Blog2007 (5) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... lso upheld the penalty of Rs. 50,000/- imposed on the appellant - Director, besides directing recovery of interest under Section 11AB of the Central Excise Act, 1944 from the appellant company. 2. The appellant was engaged in the manufacture of medicines both patent and proprietary (in short, P P) and generic. On 8-2-2000, the officers of Anti-Evasion Branch of the Excise Department visited the appellant s factory and finding that there was no record relating to the production of finished goods valued at Rs. 6,68,262.25 involving excise duty of Rs. 1,06,922/- seized the goods. It appears that while the investigation was going on, confiscation notice was issued on 4-8-2000. Those proceedings culminated in confiscation of goods by order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00, extended period could not have been invoked in the show cause notice dated 1-12-2000. He relied upon the decision of the Tribunal in CCE Indore v. Siddharth Tubes Ltd., reported in 2004 (170) E.L.T. 331, in which it was held that show cause notice cannot be issued on the same issue and for the same period twice on different grounds. It is obvious that, this decision cannot assist the appellant because the earlier show cause notice dated 4-8-2000 was confined only to the confiscation of the goods, which were seized on 8-2-2000 and it was specifically mentioned in paragraph 10 of that notice, that the investigation was going on and the assumed records were being scrutinized that a separate show cause of the offending goods will be issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) and Nizam Sugar Factory v. CCE, A.P. [2006 (197) E.L.T. 465 (S.C.) = 2006 (74) RLT 564 (SC)] will not apply to the facts of the present case. 5. The learned Counsel for the appellant contended that the appellant company was manufacturing both generic and P or P medicines. He submitted that DICLO-P was a generic medicine and that the Commissioner (Appeals) has not taken into consideration the case of the appellant that the charts which purportedly had shown P or P medicines in fact included generic medicines. He submitted that if the value of generic medicines was kept out of consideration, then the value of the excisable goods removed would not have crossed Rs. 50 lacs and no duty was payable in that event. He also submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty was not warranted on the Director and relied upon the decision in Gillooram Gaurishanker and Others v. CCE, Jamshedpur, reported in 2001 (136) E.L.T. 434 (T) = 2001 (42) RLT 1010, in which it was held in paragraph 12 of the order that there was no justification for imposing separate penalties on the Directors. He also referred to the decision in Indian Oil Corporation Ltd. v. CCE, Rohtak, reported in 2006 (206) E.L.T. 243 (T) = 2006 (76) RLT 226, pointing out that the Tribunal had reduced the penalty under Section 11AC of the Act. He submitted that the penalty under Section 11AC was the maximum penalty prescribed under the Act. 7. The learned authorized representative for the department submitted that under Section 38A of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken into account. It appears from the record that the appellant had specifically taken up the issue before the Appellate Commissioner that the clearance of generic medicines which were exempted goods as per the tariff had been calculated and merged with the clearance of excisable goods for the purpose of calculating the aggregate value of excisable goods for SSI exemption limit. It was also submitted that the clearance of the other unit, namely Mediways (India) Labs were wrongly calculated and merged with the clearance from the factory of the appellant company. There was also a contention that the value of cleared P P medicines was calculated on MRP, which was not applicable to medicine manufacturers. It was then contended that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to apply its own mind to the contentions raised by the appellant and could not have behind the back of the appellant referred the matter to the Assistant Commissioner for verification. It is not even stated in the impugned order as to what was the outcome of such verification. No opportunity was given to the appellant to participate in such verification, nor was the appellant informed about the outcome of such verification. If the verification was to find as to whether clearances of generic medicines which were exempted were included for working out the SSI exemption limit, the appellant was obviously vitally concerned and could have raised the contentions which are now sought to be raised for pointing out the nature of the goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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