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TMI Blog2018 (3) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... e been imposed on SUAS for the very same offence, there is no need to impose penalty for the same offence under Rule 26 of Central Excise Rules, 2002. Appeal dismissed - decided against appellant. - Appeal No. E/357/2009, Appeal Nos. E/400 to 403/2009 - Final Order Nos. 40533-40537 / 2018 - Dated:- 26-2-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Jaikumar, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent ORDER Per Bench The brief facts of the case are that on 24.06.04, the officers of Trichy Central Excise Commissionerate conducted simultaneous searches in the premises of Sri Amman Steel and Allied Industries (SASAI), a partnership firm in the factories and godowns of its group concerns i.e., Amman Enterprises (AE), Sri Ulaganayagi Amman Steels(SUAS), Ramalingam Steel Agencies (RSA), Amman Steel Corporation(ASC), the residences of employees of the group concerns namely, Ms. Usha and Ms. Ponnalagu (both of ASC) and Amman Lodge. SASAI manufacturers iron rods and bars. SUAS manufactures ingots and billets. AE deals in iron rods and bars. ASC RSA deal in scrap. At SAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed confirming the confiscation of excess stock which was seized giving an option of redeeming the same on payment of fine of ₹ 2.50 lakhs. A demand of ₹ 7,11,08,209/- was confirmed on clandestinely cleared goods for the period 2001 02 to 6/2004 along with interest and imposed equal penalty under section 11AC of the Act r/w Rule 25 of Central Excise Rules, 2002. A penalty of ₹ 4 lakhs was imposed on M/s. Amman Enterprises under Rule 26 of Central Excise Rules, 2002. The amounts already paid were appropriated. Demand of ₹ 1,84,57,861/- related to the year 2001 02 was dropped by the Commissioner on account of lack of corroboration for clandestine clearance related to the floppies for the year 2001 02. 4. Being aggrieved by the Orders-in-Original dated 4.5.2007 and 10.5.2007 as stated above, the assessees filed appeals before the Tribunal. Department also filed appeal before Tribunal in respect of Order-in-Original No. 7/2007 dated 10.5.2007 against dropping of demand of duty on alleged clandestine clearance by SASAI for the year 2001 02. The Tribunal vide common Final Order No. 529 to 535/2008 dated 30.4.2008 remanded the matter. The department s ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii. I appropriate the amount of ₹ 70,00,000/- (Rupees Seventy lakh only) already paid by Shri Amman Steel and Allied Industries, Nagamangalam, Trichy against the duty due in (iii) above; viii. I do not impose any penalty on Shri Ulaganayagi Amman Steels, Karaikal, Amman Steel Corporation, Trichy and Amman Enterprises, Trichy under Rule 26 of Central Excise Rule,2002 for the reasons stated in para above. ix. The duty demand in respect of the balance amount of ₹ 7,60,79,469/- (Rupees Seven crores sixty lakhs seventy nine thousand four hundred and sixty nine only) is dropped. 6. Aggrieved by the confirmation of demand of duty to the tune of ₹ 1,30,83,232/- in deonovo adjudication vide Order-in-Original No.3/2009, the assessee has filed Appeal No.E/357/2009. Department has filed Appeal No. E/401/2009 aggrieved by the dropping of demand of ₹ 7,60,79,469/-. Appeal No. E/400/2009 and E/402 403/2009 are filed by the Department aggrieved by the non-imposition of penalties on the co-noticees. 7. On 26.2.2018, at the time of hearing, the ld. counsel Shri S.Jaikumar submitted that the appellant in Appeal No. E/357/2009 is withdrawing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are was legally purchased, hence using of subject software is unauthorized and there is no guarantee about data retrieved. Hon ble CESTAT in order dated 10.10.08 in para 8(d) has clearly held that as regards the appellant s submission that the Tribunal had not considered the vital point raised by the petitioner the usage of unauthenticated software, the Tribunal observed that they have not allowed the revenue in their final order to put to use any files opened with the unauthenticated software. The Tribunal in the Final Order dated 30.04.08 in para-14 further held that the search and seizure proceedings were testified by witnesses to have been conducted disregarding the statutory requirements. The search and seizure were not witnessed throughout by independent witnesses. Description and number of floppies seized were not recorded in the mazhar. The seized floppies were not sealed. The above failures are fundamental flaws and the acceptability of floppies gathered in search as evidence is substantially eroded. These lapses pointed out by appellants justify their claim that the floppies could have been manipulated. The infirmities as pointed out by Tribunal in Para- 14 of its order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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