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TMI Blog2017 (3) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Blooms and Ingots with proper multiplication with the average weight of such Bloom and Ingots, which was recorded in the Panchnama dated 30.4.2002. In the impugned order, it is mentioned that this is the practice followed in the steel industry and was accepted by the assessee - there is no scope to interfere with the impugned order in this regard, the demand of Central Excise duty of ₹ 4,95,738/- along with interest and imposition of equivalent penalty confirmed by the impugned order is hereby sustained. Imposition of penalty u/r 173Q of CER 1994 / Rule 25 of CER, 2001/2002 - Held that: - It will not be reasonable to further punish the assessee by imposing a high penalty of ₹ 50 lakhs, when mandatory penalty to the tune of over rupees one and half crores (precisely ₹ 1,51,44,426/-) has already been imposed. Therefore, considering totality of facts and circumstances, we reduce the said penalty of ₹ 50 lakhs to 10% of the duty evaded which comes to ₹ 15,14,422/- (10% of confirmed duty demand of ₹ 1,51,44,426/-) and the same would be payable accordingly by the appellant–assessee. Appeal disposed off - decided partly in favor of appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of DGCEI (Directorate General of Central Excise Intelligence) made searches at various places including at the premises of transport companies, M/s Kamal Transport Company, Champa and M/s Bajrang Transport Co. Champa and premises of their dealers related to the appellant assessee on 30.4.2002, 2.5.2002 and 3.5.2002. 4.1 The Revenue issued show cause notice (SCN) dated 18.10.2002/21.11.2002, to the appellant assessee as well as to other entity of the assessee namely M/s PIL located at Gogaon, Raipur and also to Shri Bal Krishan Gupta and Shri Naresh Kumar Gupta both Vice Presidents in PIL. In case of the appellant assessee M/s PIL, Champa, show cause notice proposed as under: (i) Recovery of Central Excise duty amounting to ₹ 11,46,10,423/- under Proviso to Section 11A(1) of the Central Excise Act, 1944 and appropriation of already debited amount of ₹ 1,87,75,566/- against this demand; (ii) Imposition of penalty under Rule 173Q of the Central Excise Rules, 1944 read with Rule 25 of Central Excise Rules, 2001/2002 for contravention of various provisions of Central Excise Rules, 1944. (iii) Imposition of penalty under Section 11AC of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was found short on eye estimation basis and stock was not actually weighed. (vi) There is no evidence on record that the assessee actually cleared 325.783 MT of MS Ingots and Blooms and if yes to whom. (vii) Commissioner has imposed separate penalty of ₹ 50 lakhs on the appellant assessee under Rule 173Q of Central Excise Rules, 1944 / Rule 25 of Central Excise Rules. There is no justification for imposing separate penalty of ₹ 50 lakhs. Assessee cannot be visited with a penalty twice for the same alleged offence. (viii) There is no provision for seizure and confiscation of land, building, plant and machinery under Rule 25 of Central Excise Rules. (ix) Penalty of ₹ 5 lakhs imposed on Shri N.K. Gupta, other appellant under Rule 25 of Central Excise Rules, 2002 is erroneous. None of the statements of Shri N.K. Gupta are of inculpatory nature. 6.1 Similarly, Ld. Advocates for the appellant assessee who are the respondent in the case of appeal (No. 3704/2006) filed by Revenue, based on the written submissions inter alia submit as under: (i) The Department in their appeal have not effectively rebutted or controverted the substantial ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for evading Central Excise duty. The impugned order also makes a mention that on this account, the assessee made the voluntary payment of the duty. The assessee s contention that there is no sufficient evidence , has no basis when the names of the consignee and vehicles numbers are available in the said invoices. The impugned order though makes a mention that the Revenue has not caused investigation at the end of consignee or the truck owner/driver yet it concludes that balance of convenience is in favour of the department. Considering the above evidences and the discussions, we agree with the findings given in the impugned order in this regard. Hence, the impugned order pertaining to the duty demand of ₹ 79,57,994/- is hereby sustained along with the reasons mentioned therein. This ground is rejected. 8. Next grievance of the appellant is that there has been confirmation of demand of duty of ₹ 60,45,267/- on account of short accountal of production of 3811.46 MTs of MS Ingots and 120.320 MTs of Runner and Riser in the daily stock account of the assessee during the period of 11.4.2002 to 28.4.2002. The department s case is based on actual production reports recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- voluntarily. The impugned order observes that when the production records are maintained by the appellant assessee themselves, they cannot challenge the correctness of their own documents. Consequently, we agree with the findings given in the impugned order in this regard and sustain the demand of duty of ₹ 60,45,267/- along with interest confirmed and equivalent amount of penalty imposed in this regard on the appellant assessee by the impugned order. The impugned order to this effect is sustained along with the reasons mentioned therein. This ground is rejected. 9. Next grievance of the appellant is that there is demand of ₹ 6,45,427/- which has been confirmed/based on 11 lorry receipts of different transporters and the despatch register, recovered from the office of Shri R.K. Bhadoria, AGM (Logistics). AGM, Shri R.K. Bhadoria himself on record admits removal of the said goods from the factory against the said entries without payment of duty. Though, during cross examination, Shri Bhadoria denied that the said goods were cleared against those entries. The impugned order has discussed that the documents viz. LR, (Lorry Receipts), dispatch registers etc, were fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen there is no scope to interfere with the impugned order in this regard, the demand of Central Excise duty of ₹ 4,95,738/- along with interest and imposition of equivalent penalty confirmed by the impugned order is hereby sustained. 11. The appellant assessee also challenges the penalty of ₹ 50 lakhs imposed on them under Rule 173Q of Central Excise Rules 1994/Rule 25 of Central Excise Rules, 2001/2002. Considering the fact that the impugned order has confirmed total duty demand of ₹ 1,51,44,426/- and mandatory penalty equivalent to the duty demand of ₹ 1,51,44,426/- has been imposed on the assessee appellant under Section 11AC of Central Excise Act, we are of the view that additional penalty amount of ₹ 50 lakhs (which is about one third of the duty amount confirmed) imposed on the assessee appellant is on higher side. 11.1 It will not be reasonable to further punish the assessee by imposing a high penalty of ₹ 50 lakhs, when mandatory penalty to the tune of over rupees one and half crores (precisely ₹ 1,51,44,426/-) has already been imposed. Therefore, considering totality of facts and circumstances, we reduce the said penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, considering the fact that Shri Gupta has been a salaried employee though holds the position of Vice president in the assessee company Prakash Industries Ltd. (PIL), by taking a lenient view, we reduce the penalty of ₹ 5 lakhs imposed on him to Rs. One lakh only. Appeal No. E/3704/2006 (by Revenue - CCE, Raipur); 14. Revenue is also in appeal against the same Order-in-Original No. 38/2006 dated 31.3.2006. The ld. AR for the Revenue, based on appeal memorandum mainly contends that the impugned order has erred in dropping the demand of ₹ 9,94,65,997/- on 67,170,156 MTs of final goods cleared without payment of duty on the basis of bilties recovered from the premises of various transporters. The ld. Counsel for the Department submits that the respondent assessee, M/s PIL evaded Central Excise duty and it has been admitted by AGM of PIL and the case is also based on Bilty Nakal Register. 14.1 Revenue also contends that the penalties imposed are not commensurate with the level of duty evasion confirmed. 15. On behalf of the respondents, ld. Advocate during the hearing, in addition to the submissions made for their appeals Nos. 2287 2292, submit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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