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TMI Blog2023 (5) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ically dealt with the dutiable goods and have done certain acts which have made the subject goods liable for confiscation. He is consciously in the know of this very fact that by acquiring possession of such goods by transporting such goods and dealing with in other manners, will be render the goods liable for confiscation. The appellant was only an accountant who was doing normal accountancy work. The issue of valuation of captively consumed yarn is a matter of the interpretation and therefore the penal provision of Rule 209 A of Central Excise Rules, 1944 cannot be invoked against the person who is only involved in maintaining the accounts of the company. The Order-In-Original has not followed the principle of natural justice, as no perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dhandhukia and vide order-in-original dated 31.10.2000 the penalty of Rs. 5 Lacs has been imposed on the appellant under Rule 209 A of Central Excise Rules, 1944. 2. The Learned Advocate appearing on behalf of the Appellant contended that the issue of inclusion of expenses such as Bonus, Gratuity, Interest and Marketing Expenses has already been settled in favour of the assessee by this Tribunal in the case of M/s. Asoka Spintex reported under 2004 (171) ELT 59 (Tri. Mumbai) and in the case of M/s. Asarwa Mill reported under 2015 (319) ELT 216 (SC). It is also argued that the provision of Rule 209 A of the Central Excise Rules, 1944 cannot be invoked against the Appellant as he was working as a employee and looking after the accounts work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; It can be seen from the plain reading of the Rule 209 A that the person who is to be penalized under this provision needs to have physically dealt with the dutiable goods and have done certain acts which have made the subject goods liable for confiscation. He is consciously in the know of this very fact that by acquiring possession of such goods by transporting such goods and dealing with in other manners, will be render the goods liable for confiscation. 4.1 In the facts of this matter, I find that the appellant was only an accountant who was doing normal accountancy work. The issue of valuation of captively consumed yarn is a matter of the interpretation and therefore the penal provision of Rule 209 A of Central Excise Rules, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or five thousand rupees, whichever is greater." CEXA-108-07.doc 10. The Division Bench of this Court by a judgment dated 14 September 2010 passed in The Commissioner of Central Excise Vs. M/s. Ramesh Kumar Rajendra Kumar & Co. & Anr.3, in paragraph 7 after extracting Rule 209A has held that :- "The sine qua non for a penalty on any person under the above rule is: either he has acquired possession of any excisable goods with the knowledge or belief that the goods are liable to confiscation under the Act or Rules or he has been in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or has in any other manner dealt with any excisable goods with such knowledge or belief. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thus, of the view that Rule 209A cannot be invoked in the present case. We follow the view taken by the Division Bench of this Court in Judgment dated 14 September 2010 (supra) whilst interpreting Rule 209A of the said Rules. The question of law framed, thus, stands answered in favour of the Respondents and against the Appellant. 12. The Appeal is accordingly, dismissed, with no order as to costs." 4.4 I also follow the decision of this Tribunal in the case of Shri Kamdeep Marketing Pvt Ltd VS. Commissioner of C. Ex., Indore reported under 2004 (165) ELT 206 (Tribunal - Delhi). " 3.2 What remains to be considered in all these appeals is whether the penalties imposed on the appellants are sustainable or not. The penalties are under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the above rule should also be shown to have been concerned in physically dealing with excisable goods with the knowledge or belief that the goods are liable to confiscation under the Act/Rules. He should have done the act with mens rea. We have held so in S.R. Foils (supra) and J. Mitra & Co. (supra). The decision in Standard Pencils (supra) is also to the same effect. In the instant ease, neither of the essential ingredients of offence under Rule 209A has been shown to exist. We have already noted [vide Para (1) of this order] the Commissioner's findings against these appellants. The findings are contained in Para 82 of the impugned order, which is reproduced below :- "From above it is also evident that the Noticee No. 2. Shri B.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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