2009 (3) TMI 830

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..... Rule 173Q of the Central Excise Rules, 1944. The demand of duty is for the period June, 2000 to March, 2001. The Commissioner also imposed a penalty of Rs. 1 lakh on the second appellant (Managing Director of the Company) under Rule 209A of the Central Excise Rules, 1944. An earlier deposit of Rs. 6 lakh made by the appellants was appropriated towards the adjudged dues. The present appeals are directed against the Commissioner's order. 2. After hearing the learned counsel for the appellants, I find that the first appellant has contested the quantification of duty demand in their appeal memo. The learned counsel has submitted that they do not want to pursue this challenge. In the result, the first appellant has now chosen to challenge .....

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..... s judgment dated 16-1-2006 in Central Excise Appeal No. 71 of 2005 [2008 (226) E.L.T. A71 (Bom.)]. The Hon'ble High Court's order also does not indicate that any penalty-related issue was agitated before that Court by the Department. It is further noticed that, in the impugned order, the learned Commissioner accepted that the case on hand was not a case of mis-declaration, suppression, etc. Nevertheless, he held the assessee liable for penalty under Rule 173Q for "evasion of duty". Where mis-declaration, suppression, etc. were ruled out, the Commissioner ought to have recorded clear finding as to how the assessee evaded duty. As such finding is not forthcoming, the above penalty cannot be sustained. The Hon'ble Supreme Court's judgment in A .....

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..... ing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater." The sine qua non for a penalty on any person under the above rule is that either he has acquired possession of any excisable goods with the knowledge or belief that the goods are liable to confiscation under the Central Excise Act or Rules or the has been in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or has in any other manner dealt with any excisable goods with such knowledge or be .....

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