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TMI Blog2011 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... y Gaur, Manager of M/s. Balbir Rolling Mills Limited. 2. After hearing both the sides duly represented by Shri K.I. Vyas, learned advocate and Shri J.S. Negi, learned SDR, I find that M/s. Balbir Rolling Mills Limited (not appellant before Tribunal) is engaged in the manufacture of MS Bars and Angels. The factory of said M/s. Balbir Rolling Mills Limited was put to search by the Preventive Staff on 08/09-8.2005. As a result, one spiral diary containing details of illicit clearances of their final products was recovered and certain shortages were also detected by the officers. Statement of various persons including appellants was recorded admitting clandestine removal of their final products. 3. On the above basis, show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Commissioner (Appeal) has disposed off all the six appeals by a common order. It may be clarified that appeal of M/s. Balbir Rolling Mills Limited is not the subject matter of the present appeals, as the impugned order is only in respect of the penalties imposed upon the above three appellants. 5. Learned advocate Shri K.I. Vyas, appearing for the appellants submitted that the lower authorities have imposed cumulative and composite penalties under Rule 26 of the Central Excise Rules, 2002, read with Section 11AC of the Central Excise Act, 1944, which is not permissible. For the above proposition, he has relied upon the Tribunal decision in the case of Kamlesh Kumar Goel vs. CCE, Thane-II 2008 (223) ELT 65 (Tri. Mumbai). Counteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the provisions of law and the role played by the present appellants was clearly brought out in the show cause notice. I also note that in the discussion part the Additional Commissioner has come to clear findings that the appellants are liable to penalty under Rule 26. It is only in the operative part of the order that the words read with Section 11AC of the Central Excise Act, 1944 stands introduced. The appellate authority has already held that the said addition of the Section 11AC needs to be deleted. As such, it can be safely concluded that the present case is not the one where the allegation are not clear, the invocation of right provisions of the law in the show cause notice is not specific and findings of the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities imposing the penalty are required to make up their minds, as to which provisions of specific enactment operating in two different fields stands contravened by the noticee. In the present matter, as already observed the allegations right from the beginning were clandestine manufacture and clearance and the proposal was to impose penalty upon the appellant in terms of the provisions of Rule 26. The findings of the original adjudicating authority are also to that effect. As such, the appearance of Section 11AC in the operative portion of the order cannot be made the basis for setting aside the penalties upon the appellants. 8. As regards the quantum of penalties, we find that the duty evasion by M/s. Balbir Rolling Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njay Gaur. In fact, it is seen that M/s. Balbir Rolling Mills Limited have admitted their duty liability fixed against them on the charges of clandestine removal. Shri Vikas Bhushan as its Director has also admitted his knowledge and the fact that such clandestine activities were being done under his directions. When an assessee is repeatedly indulging in the clandestine removal activities, no leniency can be shown towards him. As such, I uphold the imposition of penalty of Rs. 6 Lakhs on Shri Vikas Bhushan. 9. As regards penalty of Rs. 5 Lakhs each imposed on Shri R.S.B.S. Tomar and Shri Sanjay Gaur, Marketing Manager and Manager, though I find that they were the persons involved in day to day functioning of the unit and were perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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