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TMI Blog2018 (8) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... is exorbitant and not justified - redemption fine is to be reduced. Personal penalties on employees, namely, Sh. P P Radhakrishnan and Sh. Hanzel A Malik - Held that:- These person are mere employees and performing their duties as per the instruction of their employer. There is no evidence that they have got any incentive out of the benefit derived by the appellant company - the employees cannot be penalized as they do not have belief that the goods are liable for confiscation, moreover, they are mere employee of the company working on fixed salary basis and there is no evidence on record that they were benefited by any act of evasion of duty by the company, therefore, the employees are not liable for penalty. As regard the appeal of Sh. Zoharbhai A Mallampattiwala, since the appellant is expired, his appeal shall stand abated. Appeal disposed off. - Appeal No. C/10229,11596-11598/2015-DB - Final Order No. A / 11662-11665 /2018 - Dated:- 7-8-2018 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. RAJU, MEMBER (TECHNICAL) For the Appellant : Shri Deepak Kumar ( Advocate ) For the Respondent : Shri Sameer Chitkara (AR) ORDER Per: Ramesh Nair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority allowed the same on execution of bond of ₹ 7,26,82,850/- and Bank Guarantee of ₹ 51,82,850/-. Thereafter, the SCN dated 03.08.2012 was issued to GCMSPL Sh. Zohar Mallampattiwala, Sh. Pattvitti Parukutty Radhakrishanan, Sh. Hanzel Malik, Sh. Bosov Stanislav which was culminated into adjudication order, wherein the charges proposed in the SCN were confirmed and following order has been passed: i. Confiscated 103.657 MT of diesel oil valued at ₹ 51,82,850/- found in the Tug and allowed its redemption on fine of ₹ 13 Lakhs. ii. Confiscated 46.343 MT of diesel oil valued ₹ 23,17,150/- not found in the Tug and allowed its redemption on fine of ₹ 6 Lakhs. iii. Confirmed duty demand of ₹ 12.71 Lakhs approx on the clandestinely procured 150 MT diesel oil with equal penalty of ₹ 12.71 Lakhs approx and interest on M/s GCMSPL. iv. Confiscated Tug Al-Vard valued ₹ 6.75 Crore and allowed its redemption on fine of ₹ 1.75 Crore. v. Imposed personal penalty of ₹ 10 Lakhs each on Sh. Zohar Mallampattiwala, Sh. P P Radhakrishnan and Sh. Hanzel A Malik. Thereafter, the appellant filed appeal before C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of ₹ 13 Lakhs is not justified. He further submits that the redemption fine on ₹ 6 Lakhs was also imposed on the quantity of 46.343 MT of diesel oil which was not available and the same was not seized. Therefore, the goods which were neither available and nor seized, the redemption fine cannot be imposed on such quantity. As regard the penalty of ₹ 10 Lakhs each imposed on Director Sh. Zohar Mallampattiwala and 2 employees Sh. Pattvitti Parukutty Radhakrishanan and Sh. Hanzel Malik. He submits that Sh. Zohar Mallampattiwala expired on 21.04.2018. He placed Death Certificate of Sh. Zohar Mallampattiwala, dated 16.05.2018 issue d by State Municipal Corporation, Government of Gujarat. As regard penalties on two employees, he submits that since the employees are not beneficiary of any gain made by the appellant company, they are only performing their duty as per instructions of Director of the Company, the penalty on employees should not be imposed. 3. He further submits that all the individual appellants were neither aware nor any evidence has been brought on record that they were aware that by their action diesel oil or Tug AL-Vard has become liable for confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count deserved to be reduced. The lower authority has confiscated the quantity of 46.343 MT of diesel oil and imposed redemption fine of ₹ 6 Lakh. This quantity was not available as the same was disposed of therefore, the goods which were not available for seizure the confiscation of non-existent goods cannot be made and no redemption fine can be demanded as held by Larger Bench of CESTAT in the case of M/s Shiv Kripa Ispat Pvt Ltd (supra) which was approved by Hon ble Supreme Court, reported at 2005 (184) ELT A36. 6. As per this ruling the confiscation of non-existent goods i.e. 46.343 MT of diesel oil is liable to be set aside. As regard the redemption fine on confiscation of the tug, we find that firstly, the valuation of tug was wrongly taken as ₹ 6.75 crores whereas it s admitted insured value declared is 1.90 Crores. Secondly, once the equal to duty amount redemption fine was imposed on the goods, the redemption fine of ₹ 1.75 Crore in respect of tug is exorbitant and not justified. It is also observed that as per proviso to Section 115(2) the maximum fine on the conveyance can be an amount not exceeding the market price of the goods which are sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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