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TMI Blog2011 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... t of goods in the recipient unit. The said certificate having been issued, the benefit of the same is required to be extended to the recipient 100% EOU - Decided in favour of the assessee - C/115-116, 300/2006 & E/879, 1129/2006 - A/546-550/2011-WZB/AHD - Dated:- 17-3-2011 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : S/Shri K.J. Vyas and J.C. Patel, Advocates, for the Appellant. Shri Rajendra Nagar, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. All the appeals are being disposed off by a common order as they arise out of the same impugned order passed by Commissioner imposing penalties of varying amounts, as detailed below, in terms of the provisions of Rule 26 of the Central Excise Rules, 2002 :- (a) Rs. 15 Lakhs on M/s. Sunshine Overseas (b) Rs. 25 Lakhs on M/s. Al-amin Exports (c) Rs. 10 Lakhs on M/s. Cosmos Trading Company (d) Rs. 12 Lakhs on M/s. Goodluck Garments Pvt. Limited (e) Rs. 4 Lakhs on M/s. The New Era Exports 2. Vide the same impugned order, Commissioner has also confirmed demand of duty of Rs. 6,56,46,060/- against M/s. Marvel Fashions along with imposition of penalties upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us LRs of M/s. Jay Jalaram Cargo Movers, but actually diverted the same in the local market in the guise of supply to other 100% EOUs. (f) M/s. Marvel also did not maintain the proper accounting of chemicals, in order to hide the fact that the imported fabrics were not being processed and diverted as such. (g) The evidences available following the verification at the end of consignee 100% EOUs, indicate that the consignee 100% EOUs had not received the fabrics shown in ARE3s accompanied by the fictitious LRs and just entries were being made to facilitate M/s. Marvel to evade the Government duty. Hence, all the fabrics shown to be cleared to other 100% EOUs, under the ARE3s accompanying the fictitious LRs of M/s. Jay Jalaram Cargo Movers, contained in file No. A/18 seized under panchnama dated 6-2-2003 drawn at M/s. Marvel, were actually diverted in the local market. (h) It is alleged that they had fabricated their records in order to enable M/s. Marvel to evade the Central Excise Customs duty. It is contended by the department that the appellant was concealing the facts of not receiving the goods physically which they were showing as purchased and hence, they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular, in Sept 2002, and on 25-12-2002 26-2-2003. (e) That no penalty, in any case, could be imposed on the appellant, as they had not physically dealt with the alleged offending goods, according to the version of the department itself. The above pleas raised before the adjudicating authority were reiterated before us by the learned advocate appearing for the appellants. 6. Learned DR appearing for the Revenue draws our attention to the findings of the Commissioner wherein he has dealt with the evidence on record showing that M/s. Marvel Fashions have diverted the goods in the open market. As such, submits the learned DR that adjudicating authority has rightly concluded that the goods shown to have been cleared by M/s. Marvel Fashion was not in fact received by the present appellants i.e. 100% EOUs. As such, submits the learned DR that imposition of penalties upon them is justified. 7. After carefully considering the submission made by both sides and after having gone through the impugned order, we find that the main allegation and findings are against M/s. Marvel Fashion, who is an 100% Export Oriented Unit engaged in the manufacture of 100% Polyester Dyed/Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them. It is the contention of the appellants that such remarks by the adjudicating authority are on the basis of presumptions and assumptions and there is no evidence to procure goods from any other source. 10. Undisputed facts on record are that 100% EOU, appearing as appellant before us, have produced an ARE-3s to procure the goods from M/s. Marvel Fashion. The goods so procured by them stands entered in their statutory records. It is also undisputed that rewarehousing certificates stand issued by the officer in-charge of the said 100% EOU. It is also seen that no investigations were made at the end of the said 100% EOU recipient unit. And no statement of any of their representative was recorded. If that be so, relying upon the statement of Marvel Fashion to arrive at a finding of non receipt of goods by 100% EOU is relying upon the statement of a co-noticee. The said reliance on the statement of a co-noticee, without any other corroborative evidence, is neither justified nor warranted. Surprisingly, the officers conducting investigations at the end of Marvel Fashion have not extended their investigation at the end of recipient 100% EOU. No statement of their representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made by the appellants as regards imposition of cumulative penalty under Section 112 of the Customs Act read with Rule 26 of the Central Excise Rules, 2002 or to the other grounds raised by the said appellants that inasmuch as they have not dealt with the goods, according to the Revenue s own case, penalty under the above provisions cannot be imposed upon them. 13. As regards appeal of M/s. Cosmos Trading Company, we find that Tribunal, vide its order No. A/1252-1253/WZB/AHD/2010, dated 25-8-2010 had dealt with an identical plea in the same appellant s case. The M/s. Cosmos has supplied the goods to M/s. Marvel fashion and inasmuch as the reasoning adopted by the Commissioner in the present order is identical to the reasoning adopted in the earlier case for imposition of penalty on them, we reproduce Para 5 6 of the said earlier decision :- 5. As is clear from above that the Commissioner is not disputing the fact that the polyester fabrics supplied by M/s. Cosmos Trading Company was against authorization in the form of Annexure A issued by Deputy Commissioner, Rajkot. He is also not disputing the fact that the fabrics supplied by M/s. Cosmos Trading Company has reached ..... X X X X Extracts X X X X X X X X Extracts X X X X
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