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TMI Blog2017 (12) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... f illegal credit and illegal utilization of such credit by the appellants. It is also clear that the appellants were resorting to such fraudulent clearances repeatedly and systematically over a long period of time in complete disregard of the provisions Central Excise Act and the Rules thereunder - In view of the foregoing, the order of the Ld. Commissioner confirming the demand of ₹ 1,10,41,745/- for the extended period alongwith interest and imposing penalties on the appellant M/s ATPL is upheld - The denial of Cenvat Credit of ₹ 63,839/- as well as interest and penalty of the same amount are upheld - Considering the systematic and planned suppression of production, clandestine removal of goods and clearance of the goods without payment of duty, penalties under Section 11AC of the Act and Rule 9(2) and Rule 173Q are correctly imposed. Penalty on Sh. Deepak Singh, M.D - Held that: - the Managing Director was fully responsible for the fraud, which was played on the Revenue in various ways. Hence, separate penalty on Managing Director is fully justified. The penalty on Sh. Deepak Singh, M.D. is therefore upheld. Penalty on Sh. VK Sachdeva, General Manager (Finance) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods, raw materials and fraudulent credit entries in PLA. A show cause notice dt. 04.04.2000 was issued to appellants for following categories of offences:- Sr. No. Reason of demand Amount involved 1. Four set of parallel invoices 3,95,930/- 2. Credit entries in PLA without deposits 18,50,000/- 3. Private records (Truck Registers) showing clearances 47,32,122/- 4. 6 weighment slips without corresponding Invoices/GRs of truck union 5,27,495/- 5. Removals as per Golu Registers without corresponding invoices 10,75,056/- 6. Fake invoices not forming part of clearances from factory 9,41,257/- 7. Entries made in Ludhiana depot Register, no parallel invoice of factory found 13,72,373/- 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement Commission on the ground that the adjudication order has already been passed. Against the said order of the settlement Commission, M/s ATPL approached the Hon ble High Court and the Hon ble Supreme Court but their plea were not allowed and M/s ATPL were advised to file its statutory appeal. On 01.12.2006, the appellant filed this appeal alongwith an application for condonation of delay. 3. At the start of hearing, the Revenue brought on record that M/s ATPL created a lien vide lien deed dt. 03.03.2007 crediting lien of all the assets of the company for the amount of duty and penalties pending recovery from them. Meantime, IFCI, a secured creditor of M/s ATPL took the physical possession of factory premises of M/s ATPL with all the immovable or movable assets for recovery of loan. Auction for the assets of M/s ATPL was successful and immovable assets of M/s ATPL were purchased by M/s Tarun Impex Pvt. Ltd., New Delhi and moveable assets were purchased by M/s S.R. Buildcon Pvt. Ltd. New Delhi. The auction purchasers have undertaken to pay all the liabilities of M/s ATPL. 4. Ld. Advocate submitted at the outset that they were arguing only on the personal penalties, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AC coming into effect. Same pleas were also taken in respect of other appellant employees, who had been penalized. 5. Ld. AR described the modus operandi of the clandestine clearances and incriminating evidence against the appellants. He argued that the appellants were given so many opportunities to defend themselves and despite there being a specific direction of the Tribunal to file reply in two months, the appellants did not complete the process and avoided filing any reply. As sufficient opportunities were given, there was no violation of natural justice. In this regard, he relied on the following judgments:- 1. Rathi Udyog Ltd. Vs. CCE, Meerut 2000 (123) ELT 880 (Tribunal). 2. Saketh India Limited Vs. UOI 2002 (143) ELT 274 (Del.). 3. Patel Widecom India Ltd. Vs. CC, New Delhi 2004 (170) ELT 16 (Tri. Del.). 4. Patel Widecom India Ltd. Vs. Commissioner 2015 (321) ELT A153 (All.) 5. M.N.Shah Vs. CCE, Rajkot 2005 (187) ELT 321. 6. Clutch Auto Ltd. Vs. CCE, Faridabad 2015 (329) ELT 584 (Tri. Del.). 7. Uni Socks (India) Ltd. Vs. CC Hyderabad-I 2007 (217) ELT 261 (Tri. Bang.). As regards personal penalties on the individuals, he subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication order. Hence, we find that sufficient chances were given to the appellants to present their case but the appellants did not avail those opportunities and hence we find that there is no violation of natural justice by the adjudicating authority. In this regard, we find that this Tribunal has held that in such circumstances, natural justice is not violated. In the case of M/s Patel Widecom India Ltd. Vs. Commr. of Cus. (ICD), TKD, New Delhi 2004 (170) ELT 16 (Tri. - Del.), this Tribunal held as under:- Natural justice - Opportunity of hearing - Reply to show cause notice when not filed by appellant in spite of ample opportunity afforded to them, principles of natural justice not violated. - The appellant did not file reply to the show cause notice in spite of ample opportunity afforded to them. The memo sent to them by registered post for filing reply was received by them with the remarks Refused to accept . Therefore the argument of the Counsel that proper opportunity of hearing was not afforded to the appellants, cannot be accepted. In fact, the appellants avoided, for the reasons best known to them, to controvert the allegations made in the show cause notice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad also evaded duty which has been worked out on the basis of details found in the 6 weighment slip books recovered from their factory but not found in the corresponding invoices. These weighment slips were the authentic record of the noticee and maintained by the security guards, whose statements along with the statement of Sh. A.S. Guleria, confirmed the authenticity of these slips and the modus operandi of clandestine removal. This was further corroborated by G.Rs of M/s Bassi Mubarakpur Truck Operator Union, Dera Bassi and other private records of the noticee like Golu Note Books, Truck Register etc which have not been disputed by the appellants. We also find that the Ld. Commissioner has elaborately dealt with the clandestine removal in respect of 3 trucks in Para 40 of his order, which is reproduced below:- 40. The evaded duty amount worked out in Ann. G is based on the records maintained by the Noticee in respect of three trucks numbering PAT 8500, PAT 5076, PAT 7725. These trucks are owned by the Noticee and these were used by the Noticee for transportation of the excisable goods manufactured by them, or, for the removal of raw material from the factory. These register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount are upheld. Considering the systematic and planned suppression of production, clandestine removal of goods and clearance of the goods without payment of duty, penalties under Section 11AC of the Act and Rule 9(2) and Rule 173Q are correctly imposed. The appellants have raised a plea that Section 11AC cannot be invoked as clandestine removal partly relates to 1993 i.e. prior to Section 11AC coming into the Act. We find that show cause notice in these appeals was issued on 04.04.2000. It has been clarified by the CBEC vide Letter F. No. 354/118/96-TRU dt. 06.01.1997 that the provisions of Section 11AC would apply where show cause notices have been issued on or after the enactment of Finance Bill 1996. In view of the same, this plea of the appellants is not tenable. 12. As for the penalty on Sh. Deepak Singh, M.D., we find that he was wholly looking after Administration, Finance and Commercial operations of the company. As per his statement, he was aware about taking of credit in PLA without deposit of the money in the bank. Such illegal credit was utilized for clearance of goods rendering goods liable to confiscation. Sh. V.K. Sachdeva in his statement had categorically sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that Sh. Suresh Chawla, dispatch clerk in his statements had admitted that parallel invoices were prepared and TR-6 credit were taken as per the directions of Sh. Major Singh, Manager. Sh. Major Singh has admitted in his statements about the clandestine removals done in various ways, taking of credit in PLA without deposit of money, movement of goods on parallel invoices etc and that he was reporting to and working as per the directions of Sh. N.M. Gupta, AGM, who was looking after day to day excise matters. Sh. N.M. Gupta, AGM himself admitted all the facts in his statements. He admitted that the credit was taken on TR-6 challans without deposit of any duty as per his directions and also agreed about the preparation or parallel invoices. He also admitted that Sh. V.K. Sachdeva, GM and Sh. Deepak Singh, MD were in the knowledge of all these facts. We thus find that Sh. N.M. Gupta, AGM has fully abetted in all the activities leading to clandestine removal of goods and clearance of goods without payment of duty and fraudulent evasion of central excise duty. Hence, the penalty imposed on him is fully justified. 15. The three appellants (Sr. No. 2,3 4) against whom persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this case law is also Single Member Bench and hence not binding. Even on facts the ZU Alvi was an employee of BHEL and the penalty was imposed on him under Rule 209 A. It was held that he had no dealings with the contraband goods except in his official capacity as an employee. Rule 209 A applies only to a person who deals with the contraband articles, not as a manufacturer, hence, he could not be penalized under Rule 209 A. As held by the Hon ble Delhi High Court in the case of Rakesh Kumar Garg Vs. CCE (supra) what is required is that in order to levy the penalty, it will have to be satisfactorily proved that the persons concerned was actually involved in the transporting/removing or clearing of excisable goods and had the knowledge that such goods were liable to confiscation. In the present case, the appellant employees were very much aware that the goods were liable to confiscation and what they were doing had implications of contravention of the laws; still, they willfully and systematically connived with the management in clandestine removal of goods through different modus operandi. In this regard, we place reliance on the judgment of this Tribunal in matter of M.N. Shah V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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