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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 ..... ld invokable - As a result, the same shall not vitiate the imposition of penalty upon the appellants As regards the quantum of penalties - in a case of duty evasion of Rs. 11 Lakhs, penalty of Rs. 2 lakhs has been imposed on Shri Vikas Bhushan and as such, for a duty evasion of Rs. 37 Lakhs, penalty of Rs. 6 Lakhs on Shri Vikas Bhushan is fully justified - All the appeals get disposed off - E/1834 to 1836 of 2010 - - - Dated:- 13-5-2011 - Mrs. Archana Wadhwa, J. For Appellant : Shri K.I. Vyas, Advocate For Respondent : Shri J.S. Negi, SDR Per : Mrs. Archana Wadhwa; All the three appeals are being disposed off by a common order as they arise out of the same impugned orders, vide which penalty of Rs. 6 lakh im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above. 4. As a matter of fact, it may be observed that M/s. Balbir Rolling Mills Limited as also the present appellants filed appeals before Commissioner (Appeals). The appeal of M/s. Balbir Rolling Mills Limited was remanded by Commissioner (Appeal) and the appeals of the present appellants were dismissed for non compliance with the stay order passed by him. On appeals filed by the present appellants, Tribunal set-aside the said order of Commissioner (Appeal) and remanded the matter back to Commissioner (Appeal) for decision on merits. In the meanwhile, the Additional Commissioner adjudicated the remanded matter and while confirming the demand against M/s. Balbir Rolling Mills Limited, he again imposed penalties of identical amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuch as Commissioner (Appeal) has also dealt with the said fact and has agreed with the appellants that the expression read with Section 11AC of the Central Excise Act, 1944 requires to be deleted from the order. 6. After considering the submissions made by both the sides, I find that learned advocate appearing for the appellants is otherwise not contesting their liability to the penal action, inasmuch as they were the persons duly associated with the act of clandestine manufacture and removal of the final products of M/s. Balbir Rolling Mills Limited. He has advanced his arguments on the technical aspect of the penalty having not been imposed under Rule 26 of the Central Excise Rules, 2002, read with Section 11AC of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any prejudice to the appellants. As a result, the same shall not vitiate the imposition of penalty upon the appellants. 7. The learned advocate relied upon the Hon ble Gujarat High Court decision in the case of CCE, Surat vs. R.G. Agarwal 2009 (234) ELT (215) (Gujarat), wherein the Tribunal decision laying down that the composite/ consolidated penalty under the provisions of Section 112 (b) of the Customs Act 1962 as well as under Rule 209A of erstwhile Central Excise Rules, 1944, cannot be imposed, was upheld. However, we find that the ratio of the above decision is not applicable to the facts of the present case, inasmuch as in that case the composite penalty was imposed under two different provisions of two different Acts i.e. und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 5 Lakhs imposed on Shri Vikas Bhushan was reduced to Rs. 2 Lakhs by the Tribunal. The said fact stands considered by Commissioner (Appeals), who has observed that in a case of duty evasion of Rs. 11 Lakhs, penalty of Rs. 2 lakhs has been imposed on Shri Vikas Bhushan and as such, for a duty evasion of Rs. 37 Lakhs, penalty of Rs. 6 Lakhs on Shri Vikas Bhushan is fully justified. Apart from the above, he has also observed that M/s. Balbir Rolling Mills Limited are repeatedly indulging in the clandestine removal and as such, imposition of high penalty on the Director is justified. I agree with the reasoning adopted by Commissioner (Appeals), clemency cannot be taken for granted where there is frequent evasions. The inculpatory sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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