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TMI Blog2019 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... s for job work was admittedly made under challan is in order. Procedure of Notification 214/86-CE followed or not - HELD THAT:- Since M/s. Rivaa Export Ltd. is not registered and it is also a fact that they have not filed undertaking as required under Notification 214/86-CE, there is no obligation on M/s. Rivaa Export Ltd. to follow any procedure of notification 214/86-CE. In such case the entire responsibility to discharge Excise Duty if any leviable, is on M/s. MGM Metalizers Ltd. as has been held by Larger Bench of this tribunal in the case of THERMAX BABCOCK AND WILCOX LTD., THERMAX LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [ 2017 (12) TMI 266 - CESTAT MUMBAI] . Therefore, if there was any non-payment of duty by MGM neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation it was found that M/s. MGM Metalizers Ltd. carrying out the metalizing process which amounts to manufacture and no excise duty was being paid by M/s. MGM Metalizers. Therefore, a Show Cause Notice issued to M/s. MGM Metalizers Ltd. for demanding Excise Duty and a penalty under Rule 26(1) of Central Excise Rules, 2002 was also imposed upon Sh. Mathew C. Abraham, who is the Accounts Manager of the Principle M/s. Rivaa Exports Ltd. from where the polyester PET films were sent for job work. The adjudicating authority confirmed the duty demand against M/s. MGM Metalizers Ltd. and imposed a penalty of ₹ 10 Lakhs upon Sh. Mathew C. Abraham, who is the appellant herein under Rule 26(1) of the Central Excise Rules, 2002, on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the said judgment paid the Service Tax of job work activity. This also show the bona fide of the job worker, therefore, penalty imposed on the present appellant is absolutely incorrect and illegal. He also submits that the appellant is an employee of Principle, there is no wrong doing on his part so long he supplied the goods under the cover of challan. Therefore, the penalty is not imposable under Rule 26. 3. Sh. Rakesh Kumar Bhashkar Learned Superintendant (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He submits that Sh. Mathew C. Abraham has abated in evasion of duty committed by M/s. MGM. Therefore, the penalty was rightly imposed. 4. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary judgment of Hon ble Supreme Court is available. Therefore, following the said judgment M/s. MGM Metalizers have paid the Service Tax which Prima Facie appears to be correct. This also show a bona fide on the part of M/s. MGM Metalizers Ltd. therefore, in these circumstances the charge of abatement for evasion of duty by MGM has no basis against the present appellant. It is also observed that once M/s. MGM Metalizers Ltd. has discharged Service Tax there is no intention of evasion of duty. Even the department was aware the fact that MGM Metalizers are paying Service Tax on their activity which claimed by the department as manufacture. For this reason also no mala fide is proved against anyone. 5. As per my above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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