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TMI Blog2014 (11) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... the parallel RG-1 registers were maintained upto 12/12/2006 and for the subsequent period, it has been noticed that M/s Colius though was working, was transferring entire production to M/s Maple Composite Containers Ltd (hereinafter referred to as M/s Maple). Coming to a conclusion that there was clandestine removal, show cause notice was issued to the appellant demanding duty liability, interest thereof and penalty imposed on all the appellants. The appellant contested the show cause notice before the adjudicating authority on various grounds. The adjudicating authority did not find any merits in the contentions raised by the appellant, and accordingly confirmed the demand and imposed penalties and also demanded interest. 3. Ld.Counsel appearing on behalf of the appellants would draw our attention to the factual background and submit that the entire demand can be bifurcated into 3 different demands for the period April 2006 to April 2009, which as follows:- a) Rs. 27,76,159/- for the period August 2006 to December 2006 which is based on a parallel RG-1 Register and corresponding parallel invoices which showed higher value of clearance than the genuine RG-1 Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show to the Bank. Further, it is ascertained on investigation and verification by the Department that the consignees mentioned in the parallel invoices had not received any such goods. Further, there is no evidence whatsoever to establish clandestine manufacture and clearance of the goods mentioned in the parallel RG-1 and parallel invoices, whether in the form of purchase of excess raw materials or transportation of the finished goods or receipt of cash or other payments from any buyers. Reliance is placed in this behalf on the decision of the Tribunal in the case of CCE Vs Vanifab Engineers Pvt.Ltd - 2006 (205) ELT 893, in which it is held that in the absence of evidence to show receipt of excess inputs, manufacture of excess goods, their transportation and receipt of payment from buyers, clandestine removal cannot be said to be established merely on a record prepared to show a higher turnover to the Bank. Thus, the charge of clandestine removal for demanding duty of Rs. 27,76,159/- is not established. In respect of Rs. 1,73,45,178: This demand is raised merely by taking the duty paid clearances of M/s Maple reflected in ER-1 returns of M/s Maple. This is clearly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been paid by M/s Maple, duty cannot be again demanded from Colius on the very goods on which M/s Maple had paid the duty. In any event when duty has admittedly been paid by M/s Maple, there cannot be any question of intention to evade duty and hence the larger period of limitation cannot apply and consequently the show cause notice dt.30.08.2011 demanding duty for the period December 2006 to April 2009 is clearly barred by limitation. 4. After making above submissions, it was submitted that the appeals may be allowed. 5. Ld.D.R., on the other hand, would draw our attention to the findings recorded by the adjudicating authority. It is his submission that the authorized signatory of M/s Colius and power of attorney holder of M/s Colius has not retracted their statements which are inculpatory in nature. It is his submission that the case which is booked is against M/s Colius for clandestine removal of the goods and not against the M/s Maple. It is his submission that the Department is concerned with the duty liability which needs to be discharged by M/s Colius on the goods manufactured and cleared from its factory premises. 6. We have considered the submissions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds under Central Excise law. Further, the clandestine clearance of goods under parallel invoices is evident from the admitted fact that M/s Colius had cleared their goods clandestinely without payment of duty under the four parallel invoices. The maintenance of parallel RG-1 register and raising the parallel invoices are itself evidence that M/s Colius were engaged in the clandestine activity. In any clandestine activity, in order to cover their track it is quite natural that the person who is invited in it may take one or other plea to justify and show that he has not done any clandestine activity. In this case also, M/s Colius has taken the plea that the parallel RG-1 register and invoices are just to show higher sales for bank purpose only. However, the investigations conducted in the case has revealed/established that they have manufactured and cleared the goods clandestinely without payment of duty. The fact that goods were not found to have reached buyers mentioned on invoice cannot take away the charges as goods could have been sent to other unknown buyers and it is not possible to identify each and every buyer who is buying goods cleared clandestinely. 9. The above reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In our considered view, the appellant M/s Colius accepted that they had illicitly manufactured the goods and cleared the same in respect of 4 parallel invoices, cannot run away from the fact that they were undertaking clandestine activity of illicit manufacturing and clandestine removal of the goods. Since these facts remain un-controverted, we find that the main appellant's appeal fails and we uphold the impugned order to that extent. As regards the penalty imposed on Shri Patel, who is authorized signatory, it comes out from his statement that he was acting as per the direction of Shri Somesh R. Mehra, Power of Attorney Holder of M/s Colius. Since Shri Rakesh Patel is only an employee, we find that the penalty imposed upon him by the adjudicating authority is unwarranted. Appeal filed by Shri Rakesh Patel is allowed and penalty imposed on him is set aside. 10. As regards the penalty imposed on Shri Somesh R. Mehra, we find that he being a power of attorney holder of M/s Colius and on his instructions entire activity was conducted, he needs to be visited with penalty and the adjudicating authority has rightly done so. At the same time, we find that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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