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TMI Blog2015 (9) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no application for adjournment in the file in respect of Appellant No. 5 and 6. On perusal of records, we find that learned Advocate on behalf of the appellant No. 1 to 4, by letter dated 15.01.2015, requested to decide their appeals on merits in their absence, after considering the synopsis and the copies of judgments enclosed therewith. 3. The relevant facts of the case in brief are that on 20/ 21.06.2003, the officers of Department of Revenue Intelligence (DRI) searched the premises of M/s. Sunshine Overseas (100% EOU) (Appellant No. 1). During investigation, it was found that appellant No.1 was procuring duty free raw materials Polyester Knitted Fabrics from various manufacturers including M/s. Vandevi (Appellant No.5) under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals before Commissioner (Appeals). By the impugned order, Commissioner (Appeals) rejected the appeals except redemption fine was reduced to Rs. 30,00,000/- and in the case of Shri Rashid Sadatali Saiyed (Appellant No.4), penalty was reduced from Rs. 10 Lakh to Rs. 5 Lakh. 4. After hearing the learned Authorised Representative for the Revenue and on perusal of the records, we find that during the investigation by the DRI Officers, it was found that M/s. Sunshine Overseas (Appellant No.1) was procuring the duty free materials from M/s. Vandevi. It is seen from the adjudication order that Appellant No. 5, a 100% EOU had shown clearances of knitted grey fabrics weighing 210377.470Kgs to M/s. Sunshine Overseas (Appellant No.1) under CT-3s issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6. 6. It is contended by the appellant No. 5 and 6 that the entire case was made out on the basis of statements. We have noticed that the allegations of clandestine removal of duty free materials in Domestic Market is established on the basis of statements of various persons recorded by the DRI officers on different occasions alongwith other corroborative materials. It is seen that appellant No. 6 (Shri Sanjay Rattan Prakash Aggarwal), CEO of Appellant No. 5 was directly involved in the conspiracy and had admitted in his statements the fact of removal of goods. It is also established from the test reports of the Chemical Examiner that Appellant No.1 exported the inferior quality of goods. We find that the Appellants failed to counter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs vs. Pawan Kumar Gupta - 2011 (271) ELT 10 (SC) (e) Woodmen Inds. Vs. CCE - 2004 (164) ELT 339 (Tri.) and 2004 (170) ELT A307 (SC) 8. On the other hand, the learned Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that the case laws relied upon by the appellants are not applicable in the facts and circumstances of the present case. It is submitted that it was the joint conspiracy of the appellants to remove the goods and to sale in the open market. Therefore, all the appellants are involved in clandestine removal of the goods. He relied upon the following decisions:- (a) CC, Mumbai vs. Vaibhav Exports - 2009 (244) ELT 527 (Bom.) (b) Surjeet Singh Chhabra vs. UOI - 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the partnership firm, so, the penalty on Shri Rashid Sadatali Saiyed (Appellant No.4) is not warranted. The Hon'ble Gujarat High Court in the case of Pravin N. Shah vs. CESTAT - 2014 (305) ELT 480 (Guj.), held that separate penalty not imposable upon partner of firm because partner is not a separate legal entity and cannot be equated with employee of firm. In that case, the important question of law before the Hon'ble Court was, "Whether in the facts and circumstances of the case, the Tribunal was right in upholding the penalty of Rs. 10,00,000/- imposed on the appellants under Rule 209A of the erstwhile Central Excise Rules, 1944 now Rule 26 of the Central Excise Rules, 2001". The Hon'ble Court answered to the question in f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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