9911796707
TMI Blog2014 (8) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... e is applicable to a producer, manufacturer, registered person of a warehouse or a registered dealer who contravenes any of the provisions of these rules when intent to evade payment of duty. In the present case, the main appellant has not contravened any provisions of the Central Excise Rules, 2002 with intent to evade payment of duty. POY purchased by the main appellant were not the goods manufactured by the main appellant much less with any intent to evade payment of central excise duty. As the main appellant is not the manufacturer of the goods, therefore, it is held that penalty under Rule 25 of the Central Excise Rules, 2002 cannot be imposed upon the main appellant for goods not manufactured by him and penalty imposed under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andestine manufacturing and clearance of Partially Oriented Yarn (POY). Some of the clandestinely cleared POY was sold to M/s. Deep Twisters Pvt. Ltd. (main appellant) without payment of duty and without containing any documents. Shri Pankesh S. Patel, Director of the main appellant in his statement dt. 27.01.2004 admitted that main appellant have received 6051.990 Kgs. of POY valued at ₹ 3,93,379/- from M/s. Rajvi Petrochem Pvt. Ltd. for purchasing POY without any documents and without any payment of duty. Penalties were imposed by the adjudicating authority under OIO No.159/DC-MAM/OA/2009, dt. 25.01.2010 upon the main appellant under Rule 25 of the Central Excise Rules, 2002 and upon Shri Pankesh S. Patel, Director of the main appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere mentioned that the goods handled by the appellants were liable to confiscation. In the absence of such an allegation either in the show cause notice or in the OIO no penalty can be imposed upon the Director of the main appellant in view of the following case laws: (i) Indo Green Textile Pvt. Ltd. Vs. CCE, Thane, Mumbai [2007 (212) ELT 343 (Tri. - Mumbai)], (ii) Vishal Shah Vs. CCE, Thane-II [2007 (210) ELT 135 (Tri. - Mumbai)]. 3. Ld. A.R. Shri Alok Srivastava appearing on behalf of the revenue argued that for imposition of penalty upon the Director of the main appellant, Rule 26 of the Central Excise Rules, 2002 does not require that the goods should be held liable for confiscation. It was his case that for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds without having applied for the registration certificate required under section 6 of the Act; or (d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or [rupees two thousand], whichever is greater. 2. An order under sub-rule (1) shall be issued by the Central Excise Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of polyester crimp yarn / twisted yarn for which POY is the main raw material. Shri Pankesh S. Patel, Director of the main appellant is representing the unit registered with the central excise department and was aware that the goods (POY) purchased by them were without any invoice and without payment of central excise duty. Being representative of a registered unit, he has to be aware of the central excise procedures and law. It cannot be said that he was not aware that the goods purchased by them were not liable to confiscation under the Central Excise Act, 1944 and the Central Excise Rules, 2002. The case laws relied upon by the appellant pertain to situations where a person has not dealt with any excisable goods which he was not awar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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