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TMI Blog2018 (9) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of Shri Babu Khandelwal Director of M/s HAL were also searched. On completion of detailed investigations, a show cause notice was issued which was adjudicated by the Commissioner of Central Excise, Rohtak. Ld. Commissioner after appreciating plethora of corroborative evidence in the form of documents relating to purchase of unaccounted raw materials by M/s.HSAL, examination of invoice books used for clearance of Farroalloys bearing parallel invoice numbers recovered from the godown of M/s HAL, statement of Shri Shalendra Singh, evidence from the documents recovered in various files, documented in Panchnama, evidence of financial transactions on hand computerised slips and statement of Shri Hawa Singh, who submitted 92 parallel invoices and opinion of Deputy Director FSL, Madhuban came to the following conclusion in Para 73 of impugned order. "73. In view of above, I find that M/s. HSAL received a stock of 590.477 of Ferro Chrome, 276.395 MT of Ferro Manganese and 349.420 MT of Ferro Silicon without the cover of legal document. Further, a quantity of 16.885 MT of Nickel and 21.875 MT of Silico Manganese had also been received in the factory without the cover of any bill/i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 209-A of the Central Excise Rules, 1944." The appellants M/s HAL are contesting the imposition of penalty against them. 3. Ld. Advocate for the appellants has not contested the facts or the conclusions in the aforesaid order of the adjudicating authority. The main submission is that they had only supplied raw material and, being supplier of Ferro-alloys did not deal with the excisable goods liable to confiscation. Further submission is that M/s HAL is a limited company and in the Rule 209-A of Central Excise Rules, 1944, penalty cannot be imposed on the company. In this regard, he relied upon the Larger Bench judgement of this Tribunal in the case of Steel Tubes of India Limited vs. Commissioner of Central Excise, Indore 2007 (217) ELT 506 (Tri.-LB). The contention is that the expression "which he knows" in the said Rule makes it clear that only natural persons are covered under Rule 209-A and not the legal persons. He also argued that since no goods were held to be liable for confiscation in the final order, the penalty under Rule 209-A was not imposable. In the alternate submission, the Ld. Advocate pleaded for reduction of penalty, as penalty imposed had already b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spatched to M/s HSAL, but the invoices were issued to some other parties. I also find that the appellant have not rebutted any of the submissions of the ld. AR including that that on almost all the occasions, the material dispatched to M/s HSAL was shown as SiMn on the invoices while in fact, HCFecr had been dispatched. It is also not disputed that the daily reports contained the signature of godown keepers Shri. Shalinder Singh and Shri. Ram Kishan. Besides, the fact that M/s HAL had manipulated the records has been corroborated from examination of various files, documented in the Panchnama, and these have not been disputed by the appellant. In order to appreciate the deep involvement of appellant, it will be pertinent to refer to following paragraphs in the impugned order bringing out the role of appellant in the entire evasion of duty:- "64. Examination of the invoice book used for clearance of Ferro alloys bearing parallel invoice nos. recovered at the time of search at the godown premises of HAL at 92-D, DLF Industrial Area, Phase-I, Faridabad, and statement of Shalendra Singh, S/o S.P.Singh recorded under Section 14 of the Central Excise Act, 1944 revealed that the „d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishan is a true account of sale of material and not the sale invoices which had been issued to cover up the illegal transaction. It is also observed that invoices issued by HAL and listed at Sr.No.2,3 shows the material despatched as SiMn but in fact FeMn had been despatched. Similarly, HC FeCr had been despatched instead of FeSi (Sr.No.6), SiMn (Sr.No.7), FeMn (Sr.8), SiMn (Sr.No.9 to 28), FeSi (S.No.29). Silicon Powder had been despatched instead of FeSi shown at S.No.30. HCFeMn had been despatched instead of SiMn shown on the invoices listed at Sr.No.36,37,38,39 of the chart. Apart from the above, page no.54 of File No.A-115 shows the details of 7 cheques for total amount of Rs. 31.00 lacs received from HSAL. Similarly page no.55 shows the details of 3 cheques total amounting Rs. 15.90 lacs received from HSAL. Page no.56 shows that 157.850 MT of HC Fe Cr and 37,750 MT HCFeMn had been despatched for which rate of Rs. 26,250/- PMT and 21,800/- PMT had been charged which is quite contrary to rate of Rs. 3000/- PMT shown on the invoices issued for the similar consignment. Page no.57 of file A-115 also reveals that FeCr was sold for Rs. 41,43,562/- and LCfeMn for Rs. 8,22,950/- tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as outstanding on page 69 against the name of Naresh Rawat. It will not be out of place to mention here that Naresh Rawat is also a director of HSAL as well as owns the trading firm M/s.OPRK. In view of the above investigation, it is evidently clear that page no.54 to 67 contains a comprehensive account of Ferro Alloys sold by HAL to HSAL without bills and its financial transaction confirm the entries shown in the daily report." 7. All these facts and evidences clearly show that various employees and the Director of the appellant were clearly in the knowledge that the supplies were being made for goods, which were liable to confiscation. In fact, any excisable goods cleared by appellant without cover of invoices are also liable to confiscation. Ld. Commissioner has rightly held so in para 77 of his order. Besides, the appellant was enabling evasion of duty by M/s.HSAL in a planned and systematic manner. In the case of Aries Telcom (P) Ltd. vs. CC, Chennai-2007 (220) ELT 874 (Tri.-Chennai), this Tribunal took the view that the knowledge of managing director regarding offending nature of goods would partake the character of knowledge of the company as well. In the present case, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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