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TMI Blog2015 (9) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to 1st June 1996 and 31.10.96 as well as demand of ₹ 67255/- on the shortage found are upheld. As regards the penalty imposed, I note that the provisions of procedure of section 11AC are applicable from 26.09.1996 and the amount of demand relating to the period October 1996 having been quantified as ₹ 4,08,866/-. I, therefore, reduce the penalty - Decided partly in favour of assessee. - Appeal Nos. E/3482-3483/2004-EX(SM) - - - Dated:- 31-7-2015 - Ashok Jindal, Member (J) For the Petitioner : Shri A Upadhya, Adv For the Respondent : Shri G R Singh, DR ORDER This is the second round of litigation. In the earlier round of litigation matter was remanded by this Tribunal with the following observations: We have heard Shri A. Upadhyay, Ld. Advocate for the appellants and Shri Atul Saxena, Ld. JDR for the respondents. We have considered the submissions made before us. We have also perused the impugned order. It is observed that the impugned order contains long extracts in Hindi from the statements recorded from Shri Tulsidas Manwani, Laxmandas Manwani, Jagdish Chandra Joshi, Narayan Prasad Kothari and Shambhu Dayat Agarwat verbatim. It doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. He also admitted having prepared the bills on behalf of the contractor and that only goods covered by some of the bills were accounted and the rest were not accounted for excise purposes. This has been corroborated by the statements given by Shri Santosh Kumar and Shri Narayan Prasad partners of the contractor firm. Shri Laxmandas Manwani, Director, stated that he was not aware of use of parallel invoices book and that he had never given any instructions to clear any goods without payment of duty issuing the invoice book. However, he admitted having pre-authenticated the invoice book. Shri Tulsidas Manwani, the other Director stated that he was not involved in day-to-day affairs of the company and that Shri Joshi was responsible for day-to-day affairs of the company and that Shri Joshi was responsible for day-to-day affairs of production, clearance, accounts and, therefore, he was not able to explain shortage of M.S. Bars and rods on the date of visit of the officers and that he had not instructed Shri Joshi to clear any goods without payment of duty and that he had already instructed Shri Joshi to deposit the duty involved. In pursuance of the investigation as above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as under:- (i) Shri Jagdish Chandra Joshi, Excise Clerk Authorised Signatory of the unit He is co-noticee in the present case. He admitted shortage in stock and confirmed that it was due to removal without payment of duty. He also admitted removal of goods in past under cover of parallel invoices. It is not an argument that his statement under Section 14 of Central Excise Act 1944 was recorded under duress. He never retracted from his statement. In view of this, there is no justification in noticee's request for his cross examination, especially when he is also a co-noticee in the present case. (ii) Shri R P Srivastava, General Manager He was present during the visit and physical verification of stock by the officers on 06.11.1998. He admitted removal of goods under cover of parallel invoices. Even after 06.11.1996, when shortage was noticed and his statement was recorded, Mr. Srivastava was working with the noticee. It is not an argument of the noticee that the statement of Shri Srivastava, implicating the noticee was recorded under duress. Shri Srivastava also never retracted from his statement under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellants found justified by the Adjudicating Authority in the impugned order. 11. Further, I find that there was shortage of finished goods of bars and rods weighing 36.830 MT on the date of visit of officers on 06.11.1996. The authorized representative of the appellant company clearly admitted the shortage as due to removal without accounting and without payment of duty. The use of parallel invoices for clearing unaccounted excisable goods without payment of duty stands admitted by the authorized signatory. The Director, Shri Laxmandas Manwani while admitting having authenticated the invoice book claimed that he has not given instructions to clear any goods without payment of duty. The other Director, Shri Tulsidas Manwani merely stated that he was not involved in day-to-day affairs of the factory but he had already instructed Shri Joshi to deposit the duty involved. The bills on behalf of the contractors have admittedly been prepared by Shri Joshi, authorized signatory of the appellant company. Shri Joshi has clearly admitted that sometimes, two bills are prepared with the same number, one for the accounted quantity and other for the unaccounted quantity. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. As regards the penalty imposed, I note that the provisions of procedure of section 11AC are applicable from 26.09.1996 and the amount of demand relating to the period October 1996 having been quantified as ₹ 4,08,866/-. I, therefore, reduce the penalty from ₹ 40,54,893/- to ₹ 4,08,866/- on the appellant company. 12. Shri Tulsidas Manwani was the Director of the appellant company during the relevant time. The obligation of the Director relating to the overall performance avidities of the company, are well defined under the provisions of the Companies Act, and therefore, the plea of ignorance cannot be accepted. The claim of Shri Tulsidas Manwani that the entire activities like production, clearance were being looked after by authorized signatory is also not acceptable. Shri Joshi, has stated he has acted as per the direction of the Directors. On the same ground penalties on him are justified. However, considering the entire facts and circumstances, of the case, I reduce the penalty to ₹ 1 Lakh only. 13. In these terms, I pass the following order: a) Demands of ₹ 39,87,886/- on account of clandestine clearance of the goods stands confirmed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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