9911796707
TMI Blog2010 (1) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... made and appellants have requested that the matter may be decided on the basis of submissions made in the appeal memorandum and the written submissions made. 3.1 The appellants have submitted that the statement had been retracted the very next day and therefore the same could not be relied upon. 3.2 Further, the Commissioner (Appeals) did not consider the fact that there were entries in RG-23-D register and they had also produced copies of bilties in support of their contention that goods had been transported. In the absence of a finding that copies of RG-23-D register and bilties were fake or bogus, the order of the Commissioner (Appeals) has to be set aside. 3.3 The statement of the proprietor was not corroborated and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proprietor and the firm are not separate entities and therefore the claim that penalty cannot be imposed on a firm under Rule 26 of Central Excise Rules, 2002 is not tenable and the Larger Bench decision in the case of Steel Tubes of India cited by the appellants would not be applicable to this case. Further, he also submitted that the claim of the appellants that penalty under Rule 26 cannot be imposed on them since they have not handled the goods is also not tenable. The decision of Larger Bench of the Tribunal in the case of Steel Tubes of India Ltd. v. CCE, Indore reported in 2007 (217) E.L.T. 506 (Tri. - LB) would not be applicable to this case. In this case it is not the contention of the Department that appellants had not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he form of stores receipt register and statement of four employees of the receiving company. As regards entries in the RG-23D register, it is not the case of the Department that no entry was made in the RG-23D register. The case of the Department is that goods were not sent to M/s. Sampat Heavy Engineering Pvt. Ltd. Therefore, the claim that RG-23D register entry was made would be helpful to the appellants is not correct. Coming to the penalty I agree with the learned DR that the proprietor of the firm cannot be treated as separate entity and therefore the claim that no penalty can be imposed on a firm under Rule 26 also cannot be sustained. I also find that the reliance of the appellants on the decision of the Larger Bench in the case of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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