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TMI Blog2022 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... y finding to that effect. As the issue of Company has been settled in terms of SVLDRS-2019, any observations in respect of the case of the Company is refrained. In the case of SHRI RAMESH DESHPANDE AND SHRI DEBDUTTA CHATTERJEE VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [ 2021 (7) TMI 1307 - CESTAT MUMBAI] where on similar facts, it was held that Since the impugned order fails to establish the ingredient of mens rea on the part of the Appellants who were otherwise performing their duties as employee of the company, the penalties cannot be imposed on the appellants in these two appeals. There are no merits in the impugned order imposing penalties on the appellants who were performing their duties within the company - appeal allowed - decided in favor of appellant. - Excise Appeal No. 1053 of 2012, 1054 of 2012, 1055 of 2012, 1056 of 2012 - FINAL ORDER NO. A/85133-85136/2022 - Dated:- 16-2-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Ganesh K.S. Iyer, Advocate, for the Appellant Shri Sanjay Hasija, Superintendent, Authorised Representative for the Respondent ORDER These four appeals are directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade name, whether registered or not, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person......... From the above it was concluded that M/s.Pyro Mumbai are not entitled for SSI exemption and they were supposed to discharge duty liability since start of their manufacturing activity. There is clear suppression and demand of duty stands for extended period of five years. 6.2 As per the records, M/s. Pyro Mumbai and M/s. Pyro Goa, both are private limited company, thus legally implying that both are separate legal identity. Both the companies are having same set of directors viz. Shri M.D. Bichu as Managing Director and S/Shri D.M. Bichu and R.M. Bichu as Directors. The products manufactured by both the units are same except the technicality involved in the manufacture. M/s. Pyro Mumbai were catering to meet the requirement of lower end of market, where as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods manufactured by them and have cleared the same without payment of central excise duty and without filing any declaration with the Central Excise department or without declaring the same to the Central Excise authorities, thereby suppressing this information from Central Excise authorities. Incrementally from the foregoing facts enumerated above it is evident and appears that it has contravened the provisions of the Central Excise Act, 1944 and suppressed the facts about the illicit removal of finished goods from its premises with an intent to evade the applicable central excise duty and thus in the instant case the proviso to section 11A of the Central Excise Act, 1944 for the extended period of limitation is clearly invokable. 8.1 It appears that Ms. Pyro Goa has aided and abetted M/s. Pyro Mumbai by deploying Shri Shyam S. Bichu, General Manager to look after it's day to day production work under overall supervision of Shri M.D. Bichu, Managing Director. Purchase orders were also procured on behalf of M/s. Pyro Mumbai. 9. It appears that Ms. Pyro Mumbai and M/s .Pyro Goa have thus, rendered themselves liable for penal action under section 11AC of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble during the relevant period; iii. Penalty should not be imposed on them under section 11AC of the Central Excise Act, 1944, read with rule 25 of the Central Excise Rules, 2002 as amended. iv. Further, noticee Nos. 3 to 6 are also individually called upon to show-cause to the said Commissioner, within 30 days of the date of receipt of this notice, as to why penalty should not be imposed, under rule 26 of the Central Excise Rules, 2002, for the active malafide and premeditated roles in causing the aforesaid loss of central excise duty by M/s. Pyro Mumbai. 2.3 The show cause notice was adjudicated as per the impugned order referred in para 1, above. Aggrieved by the impugned order appellants have filed these appeals. 3.1 Heard Shri Ganesh K S Iyer, Advocate for the Appellants and Shri Sanjay Hasija, Superintendent, Authorized Representative for the revenue. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The appeal filed by the appellant M/s. Pyro Electric and Allied Instruments Pvt Ltd., Mahim (West), Mumbai 4001016 (Company), has been dismissed by us as deemed withdrawn as the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules made there under. Therefore, I hold that Shri Shyam Sadanand Bichu, Shri Ramnath Madhusudan Bichu, and Shri Dattatray Madhusudan Bichu, are also liable to penal action under rule 26 of the Central Excise Rules, 2002. 4.6 We have reproduced the findings of the Commissioner in the impugned order. In the said order, only Para 30 can be said to be the findings recorded by the Commissioner, against the appellants who are present before us. The findings recorded are very general in nature without assigning any role to the appellants herein specifically. Also the issue was in relation to the ownership of the brand name which in any case belonged to the sister concern of Company at Goa, and is purely an interpretational issue without any mens rea. Even impugned order does not records any finding to that effect. As the issue of Company has been settled in terms of SVLDRS-2019, we refrain for making any observations in respect of the case of the Company. 4.7 In the case of Ramesh Deshpande [Final Order No A/86667-86668/2021 dated 27.07.2021] where we were concerned with similar facts we have observed as follows: 3.2 The reasons for imposing penalty under rule 26 of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly no excisable goods are confiscated. The offence alleged against these respondents is, they were not diligent in seeing that the cheques issued towards payment of the excise duty were whether encashed or not. Therefore, the said offence does not fall under Rule 26 of the Excise Rules. 3.6 Hon ble Punjab and Haryana High Court has in case of Vee Gee Faucet Pvt Ltd [2015 (329) ELT 76 (P H)] held as follows: 27 . In respect of penalties imposable under Rule 26, again the penalty is payable if a person acquires possession of, or in any manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under the Act. Such provision again makes the mens rea a necessary ingredient for imposition of penalty, as held by the Supreme Court in Pepsi Foods Ltd. case (supra). 28 . In view of the above, we find that the Revenue has not been able to prove the intention to evade the payment of duty or the fact that the assessee knew or has reason to belief that the goods used are liable to be confiscated under the Act. The Tribunal is right in setting aside the order of imposition of penalty. 3.7 Since the impugned order fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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