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TMI Blog2008 (2) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... . This appeal was registered as Appeal Case No. 523/2007. 1.2 The Second Appellant Shri Prabir Kumar Mitra came in Appeal in Appeal case No. 524/2007 against levying of penalty of Rs. 4.00 lakhs against him. The third Appellant Shri Asoke Kumar Das in Appeal case No. 525/2007 came in Appeal against penalty of Rs. 10.00 lakhs levied on him. 2.1 By the impugned order so far as the first Appellant is concerned, the ld. Adjudicating Authority found that as against the allegation of eight occasions of false credit taken in the PLA account in a fraudulent manner without depositing cash/cheque in the focal point bank towards discharge of duty liability, there were only five occasions as stated in Page-14 of the impugned order, resulted in dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant cannot be held to be an offender under Section 11A of the Central Excise Act, 1944 when there were sufficient balance in Bank Account and that remained undisputed by Revenue. He drew attention to para 4 of the statement of facts in Appeal Memo and argued that appellant s factory was started in June 2004 and one of the directors Shir Asoke Kumar Das who was promoter of the Appellant Company, found running of the company was very difficult at the initial stage. Their survival was in serious threats. Both directors of the Appellant were occupied in procurement of business. Shri Das being a qualified engineer was extremely occupied for production and marketing and he was all along in business tour. In absence of the responsible di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerate the Appellant from the charges brought out by Show Cause Notice when the Department found that the Appellant was guilty in terms of investigation detailed in para 4 of page 6 of the impugned order. Therefore, neither the penalty levied should be waived in the case of the first Appellant nor the personal liabilities of the other two Appellants extinguished. 5.1 Heard both sides and perused the record. Although Stay matters of all appellants arising out of common cause were fixed for hearing, after an extensive hearing of the matter, it was considered necessary to dispose the appeals, dispensing pre-deposit. Accordingly, we dispensed pre-deposit and dispose all three appeals as hereinafter dealt. 5.2 Record revealed that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalizing the first Appellant to the extent of Rs. 5.00 lakhs would meet end of justice. So far as the second Appellant Shri P. K. Mitra is concerned, his involvement and failure to prove innocence without taking reasonable steps to comply to law, we find proper to impose a penalty of Rs. 1.00 lakh on him reducing the levy of Rs. 4.00 lakhs made on him. So far as the third Appellant Shri Asoke Kumar Das is concerned having observed that the Company was in early stage of its set up and as a technocrat he was occupied in various activities and having no conspiracy to cause loss to Revenue being proved he may be exonerated from the charge of penalty. 6. In the result, the First Appellant and the Second Appellant succeed partly and the third ..... X X X X Extracts X X X X X X X X Extracts X X X X
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