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TMI Blog2009 (4) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... rney holder of M/s. Surajbhan Rajkumar (P) Ltd., M/s. Shivang Ispat (P) Ltd., Shri Satish Shivnath Agarwal, Director M/s. Shivang Ispat (P) Ltd., Shri Chandrakant Nathwani, Proprietor of M/s. Shree Khodiyar Transport Co. under Rule 26 of the Central Excise Rules, 2002 and; imposed penalty of Rs. 3,00,000/- each on Shri Arun Jaswantlal Acharya, Proprietor M/s. Star Corporation and M/s. Precision Travancore Inds. Ltd., M/s. National Lamination Inds. And M/s. Alfa Lamination under Rule 26 ibid. 2. Heard both the sides and perused the records. 3. The break-up on the demand of duty is as under : (i) Rs. 44,03,266/- on account of the physical shortage of 3233.125 MTs of scrap. (ii) Rs. 12,50,305/-, Rs. 3,44,299/- and Rs. 8,31,833/- are on account of the Cenvat credit availed on the Central Excise invoices issued by M/s. Precision Transcore, M/s. Alfa Lamination and M/s. Lamination Industries respondents. (iii) Rs. 7,67,473/- on account of the Cenvat credit availed on the Central Excise invoices issued by M/s. Shree Durga Iron and Steel and M/s. Surajbhan Rajkumar and Rs. 74,040/- is on account of the Cenvat credit availed on the Central Excise invoices issued by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon documents were not supplied to him. He relied upon Allahabad High Court Judgment in the case of Novamet Industries [2008 (227) E.L.T. 363 (All.) = 2009 (13) S.T.R. 108 (All.)] in support of this connection. We find that the learned Counsel has not specified the non-relied upon documents and how these are relevant for the purpose of his defence. In the cited case law, the Commissioner was directed to make available copies of data recovered from seized computers, which were the basis to conclude under-valuation and hence relevant whereas this is not the case here. Hence, this case law is of no help to M/s. BSMPL. From the perusal of the records, we find that the conduct of M/s. BSMPL was not above board in as much as dilatory tactics were adopted by them to delay the adjudication proceeding before the Commissioner. It is admitted position on record that all relied upon documents have been received by M/s. BSMPL. We also note that personal hearing was postponed more than seven times due to the non-cooperative and indifferent attitude of M/s. BSMPL. At all times, the intimations of Personal Hearing were sent fo BSMPL and their advocate well in advance, it is to be noted that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Sachidananda Banerjee, A.C.C., Calcutta v. Sitaram Agarwal reported in 1999 (110) E.L.T. 292 (S.C.), which was deliberating over the expression in any way concerned in any manner dealing with prohibited goods appearing in Section 167(81) of the old Sea Customs Act, 1878, which is pari materia with Section 112(b) of the new Customs Act, 1962, which in turn is pari materia with Rule 209A of the Central Excise Rules, 1944 and Rule 26 of the Central Excise Rules, 2002. The Supreme Court held as under : 13. The main contention of the respondents which has found favour with the High Court was that Section 167(81) when it deals with persons and subjects them to imprisonment and fine on conviction by a Magistrate is also concerned with persons who are in some way or other actually concerned in the import and has no application to third persons who had nothing to do with the actual import but might have come in possession of smuggled goods even knowingly after they had been smuggled. Before however we consider this contention which has found favour with the High Court we should like to dispose of the other contention which was raised on behalf of Sitaram Agarwala and whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase it and the deal did not go through only because the police intervened. In such circumstances whereby previous agreement or arrangement a person goes to purchase an article which he knows to be smuggled it would in our opinion be a case where such a person must be held to be concerned in dealing with the prohibited goods. Where a person does any overt act in relation to prohibited goods which he knows to be such and the act is done in consequence of a previous arrangement or agreement it would in our opinion be a case where the person doing the act is concerned in dealing with the prohibited goods. In other words any transaction relating to prohibited goods which is done or attempted to be done after some kind of prior arrangement or agreement would in our opinion clearly amount to the person being concerned in dealing with the prohibited goods. Both the words concerned and deal have a wide connotation. The words concerned in mean interested in, involved in, mixed up with while the words deal with mean to have something to do with, to concerned one-self, to treat, to make arrangement, to negotiate with respect to something . Therefore when a person enters into s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not on a firm or corporate entity. We prima facie do not agree with this view because all these decisions of the Tribunal do not take into account the judgment of the Hon ble Supreme Court in the case of Agarwal Trading Corporation and others v. Assistant Collector of Customs, Calcutta and others [1983 (13) E.L.T. 1467 (S.C.)] in which it has been held at para 7 as under : 7. The second contention that because the firm is not a legal entity, it cannot be a person within the meaning of Section 3 of the Foreign Exchange Regulation Act or of Section 167(3), (8) and (37) of the Sea Customs Act, is equally untenable. There is of course, no definition of person in either of these Acts but the definition in Section 2(42) of the General Clauses Act, 1897, or Section 2(3) of the Act of 1868 would be applicable to the said Acts in both of which person has been defined as including any company or association or body of individuals whether incorporated or not. It is of course contended that this definition does not apply to a firm which is not a natural person and has no legal existence, as such clauses (3), (8) and (37) of Section 167 of the Sea Customs Act are inapplicable to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Precision Travancore Inds. Ltd., Daman, M/s. National Lamination Industries, Daman, and M/s. Alpha Lamination, Daman are concerned, we note that the scrap generated in these units during the manufacture of electrical laminations was cleared on payment of duty under the cover of invoices. The delivery was effected under the cover of delivery challans supported by the Central Excise invoices. The delivery of the material was at the factory gate and it was lifted by M/s. BSMPL. Prima facie, they are not responsible for any misdeeds committed by M/s. BSMPL after the goods have left the factory. As far as the allegations that vehicle numbers indicated in some of the invoices are wrong and are of two wheelers, three wheelers, LMV etc. is concerned, the explanation of the units that while preparing the Central Excise invoices, the clerk, as per the normal practice had not personally verified the vehicle number, but had depended on the buyers representative and the vehicle number as given by the buyers representative who had come to collect the goods with their vehicle was indicated in the Central Excise invoices, is prima facie acceptable. In majority of the invoices, no such dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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