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TMI Blog2013 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... phs as well as nexus of both the firm is appreciable from the record in view of mass scale evasion noticed on different counts as aforesaid there should be penalty of ₹ 1 lakh on Shri Neeraj Kumar Aggarwal. His appeal is partly allowed. Penalty imposed on Shri Satyavan Singh is concerned his knowledge is attributable to the evasion. But his pre-meditated mind to cause evasion does not appear to be present in the entire discussion and findings of Adjudicating Authority. No doubt, he was authorised signatory. But, there is no scope to annul penalty fully in his appeal. However, in view of aforesaid appreciation of absence of his ill intent penalty imposed on Shri Satyavan Singh, authorised signatory of Sukalp Agencies is reduced to ₹ 10,000/-. - Appeal No. 2497 to 2499/2005 - FINAL ORDER NO.55868-55870/2013 - Dated:- 19-3-2013 - Shri D.N. Panda and Shri Manmohan Singh, JJ. For the Appellant: Shri J.P. Kaushik, Advocate For the Respondent: Shri I. Baig, D.R. JUDGEMENT Per D.N. Panda; Investigation made to the premises of the appellant on 30th July, 2002 resulted with discovery of certain incriminating materials and transaction causing prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised demand of duty in the adjudication to the above extent and also penalised the appellant to that extent under Section 11AC. 4.2 Revenue submits that when invoice is prescribed to be issued under serial number in respect of each distinct financial year, the plea of issuance of invoice No. 85 dated 26.7.2002 from the invoice book of preceding financial year is not sustainable in law because the motive of appeal is a clear demonstrating clandestine removal of one D.G. Set through the invoice in question. Accordingly, adjudication was rightly mad to confirm the demand of duty and penalty. 4.3 From the rival contentions one aspect is very clear that invoice in question was issued from invoice book of preceding financial year and that remained undisputed. Once such a breach of Rule was noticed by Revenue within 4 days of issuance of invoice and the procedure of issuance of invoice by appellant was well known to the appellant who was engaged in manufacturing activity from many years in past, there is no warranting circumstance to hold that transaction in question was not intending to escape notice of Revenue. Therefore, the duty demand of Rs. 21,393/- is confirmed. It was broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of second allegation above. The rest of the demand was Rs. 34,596/-. Therefore, when we have already confirmed the duty demand of Rs. 24,800/- we reduce the present duty demand on the above count of allegation to Rs. 34,596/- since we did not find any cogent evidence to hold that two D.G. sets was found to have been cleared in January, 2002. Therefore, on the third count of allegation duty demand is reduced to Rs. 34,596/-. Learned Counsel Shri Kaushik says that the amount of Rs. 34,596/- has already been debited in RG-23A, Part-II record on 5.7.2005. When clandestine removal of one D.G. set in question related to January, 2002 clearance, giving rise to duty demand of Rs. 34,596/- and reversal by debit entry was done on 5.7.2005, that shall not exonerate the appellant from interest and penal consequence of law. Accordingly, interest become payable from the date of removal of D.G. set in January, 2002 till 5.7.2005 at the appropriate rate. When the motive of removal is attributable to mala fide, penalty under Section 11AC to the extent of Rs. 34,596/- is confirmed. 7. Fourth allegation was that installation and testing charges as per balance sheet figures for the year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l folder. To some extent it shall be appreciated that when the appellant pleads that it carries two different activities i.e. trading and manufacturing, learned adjudicating authority should have extended its examination to find out whether there were actually two activities. Law cannot be applied whimsically or capriciously which are alien to justice. In all fairness, the duty demand of Rs. 12,85,084/- calls for scrutiny on remand to grant a fair opportunity to the appellant to adduce evidence of profit and loss account of the trading concern for the aforesaid 3 years to prove its stand as to the disclosure of sale figure in respect of trading activity and clearance value of goods manufactured during those years. Revenue is required to ensure that assessable value of excisable invoices relating to manufactured goods appear correctly in profit and loss account. The value of clearances as per excise invoices should be exigible to excise duty levy. If trading activity is independent of manufacturing activity and genuineness of the trading activity is established verifying the sales tax return, sales tax registration and disclosure in income tax return the sale figure form such activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand and penalty as well as interest on confirmed part of adjudication which shall be carried out by the learned Adjudicating Authority as soon as he receives this order. He shall only re-do the adjudication in respect of two limited aspects of remand as aforesaid. 13. So far as penalty against Shri Neeraj Kumar Aggarwal is concerned, it was pleaded that there was no mala fide between the deals of Sukalp Agencies and Sukalp Engg. Corporation. Therefore, as against duty demand of Rs. 24,800/-, levy of huge penalty of Rs. 10 lakhs shall be disproportionate. Revenue opposes such contention of the appellant. We are in part agreement with Revenue as it is the established fact that the duty demand of Rs.24,800/- has not resulted in vain but on discovery of cogent evidence and contumacious conduct of the appellant by investigation. Therefore, plea of the appellant of no mala fide does not get approval. As the questionable conduct and oblique motive of appellant is on record in the preceding paragraphs as well as nexus of both the firm is appreciable from the record in view of mass scale evasion noticed on different counts as aforesaid there should be penalty of Rs. 1 lakh on Shri Neera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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