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TMI Blog2017 (11) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... d by M/s. AKS. This being so, the contentions of the ld. counsel that there is no proof that unaccounted scrap was utilized will not succeed - the penalties imposed under section 11AC on M/s. AKS and on the kingpin of the entire modus operandi N.K. Kothari is also sustained. Penalty on N.C. Kothari, Managing Director - Held that: - there is nothing on record to suggest that the said person was involved in the day to day affairs of the unit on account of ill-health and further that no other employee or other persons have implicated otherwise. For this reason, the adjudicating Commissioner, in our view, has correctly found that Shri N.C. Kothari is not liable for penalty under Rule 26 ibid. In respect of penalties on other persons, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of three numbering machines, which were used for duplicating the serial numbers on the parallel set of invoices, which were seized under mahazar dated 28.8.2009 from the residential premises of one of their employees. The director of M/s. AKS, Shri N.K. Kothari himself admitted to have used 217 numbers of parallel invoices for making clearances of MS ingots manufactured by them clandestinely. Therefore, it appeared to the department that during the period November 2007 to June 2009, M/s. AKS have thus manufactured and cleared in all 5372 MTs of MS ingots totally valued at ₹ 12,91,13,562/- under cover of bogus invoices without payment of duty and without following any Central Excise procedures which have resulted in eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the records. 2.3 After serving the show cause notice the officers again threatened the appellants and typed reply dated 9.9.2009 and made signed by the appellants without furnishing the relied upon documents. 2.4 The impugned order was passed in a very hasty manner. 2.5 One Shri Mahendran was working as clerk in the appellant-assessee s factory and he was blackmailing the appellant with forged documents. Police complaint was filed against such action. It appears that the said Mahendran has informed the Central Excise Department with such fabricated photocopies on which basis the department has conducted the investigation and raised the demand. The statements were prepared on the basis of such documents furnished by Shri Mahendran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of the Commissioner in respect of the confirmation of the duty liability with interest and imposition of penalty on M/s. AKS and Shri N.K. Kothari, Director are very much in order. Though the appellant-assessee alleged that the said letter was obtained by threat and coercion, there is nothing to establish that they had filed any complaint before the Police that they were forced to write such a letter admitting the documents recovered and the statements recorded from them. 3.1 In respect of the departmental appeals, ld. AR submits that while penalty has been imposed on Shri N.K. Kothari, Director of M/s. AKS on the basis of the results of investigation, however the adjudicating Commissioner has chosen not to impose penalti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the invoices. Another employee of appellant-factory working as PRO cum Excise In-charge, Shri Senthil on enquiry stated that there were clearances of goods under parallel invoices appearing the same serial number of the genuine invoices without payment of duty and that he was in-charge of making such parallel invoices. S/Shri Senthil, Shivachandra Kumar and Rajesh Kumar Jha, all of them were acting in concert for use and issue of such parallel invoices under the instructions of Managing Director as well as the Director Shri N.K. Kothari. It is also brought out that Shri Shivachandra Kumar who is storekeeper prepares the log sheet on daily basis based on the reports received from the factory for submission to the Managing Director and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce without payment of duty and have requested that lenient view may be taken in the matter since they have already paid up an amount of Rs. One crore towards the liability. 6. Viewed in this light, we do not find any infirmity in the conclusion arrived at by Commissioner in para 36.1 of the impugned order. In consequence, the penalties imposed under section 11AC on M/s. AKS and on the kingpin of the entire modus operandi N.K. Kothari is also sustained. 7. In the event, Appeal Nos. E/679 69/2009 filed by M/s.AKS and N.K. Kothari are dismissed. 8. Coming to the appeals filed by the department in Appeal Nos. E/715 to 721/2009, we find that the adjudicating Commissioner has gone deep into the role of various persons. In para 37.1, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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