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TMI Blog2024 (11) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... even though the licence /AROs were obtained fraudulently, the appellant being not the party to said fraud, whereas he is only involved in the purchase and sale of advance licence /AROs. Without Knowledge of such fraud, it cannot be penalized. On the same set of fact, the appellant has been exonerated from penalty in the decision of this Tribunal reported as T.S Makkar Vs. Commissioner of Central Excise, Surat [ 2012 (10) TMI 981 - CESTAT AHMEDABAD] wherein on the issue of imposition of penalty on the appellant there were difference of opinion between the Hon ble Member (T) and the Hon ble Member (J), due to which the third Member was appointed which hold the penalty is not imposable on the appellant. The aforesaid order was also followed in the appellant s own case by this Tribunal vide final order No. A/11619-11620/2023 dated 28.07.2023, whereby the penalty imposed under Rule 209 A of Central Excise Rules, 1944 and under Section 112 (b) of Customs Act, 1962 were set aside. - HON'BLE MEMBER ( JUDICIAL ), MR. RAMESH NAIR Shri G B Yadav, Advocate for the Appellant Shri Ajay Kumar Samota, Superintendent (AR) for the Respondent ORDER RAMESH NAIR The factual matrix of all these Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against them as well as others including the Appellants herein all Licence Brokers. The provisions of Section 112 (b) and/or Rule 209A of the Central Excise Rules, 1944 (Rule 26 of the Central Excise Rules, 2002) has been invoked for imposing penalty on the Appellants in respect of the present Appeals. 2. Shri G B Yadav, Learned Counsel appearing on behalf of the appellant submits that on the basis of the same modus operandi various cases were made out. In the present case appellant were also penalized in connection with dealing with the advanced licence /ARO, in respect of other EOUs and in one case reported in 2014 (312) ELT 427 (Tribunal- Ahmedabad) the penalties were dropped. Therefore, in the present case also being the identical fact, the appellant is not liable to penalty. Following the said judgment, this court has further decided the identical cases as follows: - 2016(334) E.L.T.115 (Tri Ahmd.) in R.C. Jain Vs CCE Surat Final Order No. A/11619-11620/2023 dated 28.07.2023 in the case of T.S.Makkar Final Order No. A/10254/2023 dated 07.02.2023 in the case of Rajesh Hundia 3. Shri Ajay Kumar Samota, Learned Superintended (AR) appearing on behalf of the Revenue Reiterate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it can be said that Shri T.S. Makkar did not deal with the goods and therefore is not liable to penalty in view of the decision of the Tribunal-LB in the case of M/s. Steel Tubes of India Ltd. as held by learned Member (Judicial) or it has to be held that he is liable to penalty having dealt with the goods as held by Member (Technical)? 27. I have carefully gone through the orders passed by the Hon ble Brother Members, the points of difference, oral and written submissions of both the sides, and the entire voluminous records before me. This matter has arisen before me as third Member consequent upon differences of opinion between the learned Member (Judicial) and the learned Member (Technical) of the regular Bench, which considered the appeal in the first instance. The essential facts of the case have been given in sufficient detail in the orders passed by the learned Member (Judicial) and the learned Member (Technical)? 28. I proceed to answer the points of difference as follows - 1st point : Whether in the facts and circumstances, it has to be held that Shri T.S. Makkar was aware that the licences were fake, forged or fictitious as held by Member (Technical) or it has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 14 that Shri Manoj Goyal in his statement dated 28-12-2001 admitted having purchased the licences at a premium of 33-34%, however the same was being paid by 100% EOU to Shri R.C. Jain. No evidence suggests that the present appellant sold the licences directly to 100% EOU on such premium. In absence of any cogent evidence, although circumstances may raise grave suspicion, I am unable to hold that the appellant was aware that the licences were fake, forged or fictitious. 2nd point : Whether it can be held that all the evidences relating to Shri R.K. Gupta have not been further investigated by DRI as held by learned Member (Judicial) or whether it has to be held that DRI had made serious efforts to trace him as held by Member (Technical)? 31. Member (Judicial) on this point held that the efforts made by DRI officers to locate Shri R.K. Gupta, has not resulted in any fruitful result. The appellant during the course of his interrogation, also disclosed the names of one Shri K.D. Sharma and Shri Nitin Rastogi as the persons who used to buy licences from Shri R.K. Gupta. These persons have also admitted the same. Not only that, he also disclosed the case file number where Shri R.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was known to M/s. Kay Bee Tex Spin Ltd., so as to even remotely infer any aiding and abetting with the said 100% EOU on such basis. 34. In this light, it appears that solely on the basis of the appellant s oral statement, it cannot be established that he was aware that no goods would be cleared but only paper transactions will be made. Moreover, when it is established that the appellant was not even known to the concerned directors/persons of the said 100% EOU, the question of aiding and abetting them would not arise. 4th point : Whether in the facts and circumstances of the case, it can be said that Shri T.S. Makkar did not deal with the goods and therefore is not liable to penalty in view of the decision of the Tribunal-LB in the case of M/s. Steel Tubes of India Ltd. as held by learned Member (Judicial) or it has to be held that he is liable to penalty having dealt with the goods as held by Member (Technical)? 35. It is trite that to attract penalty, the penal provisions would require strict interpretation. Even if the present appellant dealt with the licences, he has not dealt with any goods in any manner nor is there any such allegation. Without dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forged/fake nature of the licences. Therefore in such peculiar facts of the case none of the judgments cited by the Revenue and relied by the learned Member (Technical) would have any application. 38. In Sachidananda Banerjee, A.C.C., Calcutta v. Sitaram Agarwala reported in 1999 (110) E.L.T. 292 (S.C.) the Hon ble Supreme Court was concerned with third persons who had nothing to do with the actual import but might have come in possession of smuggled goods, knowingly, after they had been smuggled. While confining to the facts of the said case it was held that respondent Sitaram was concerned in dealing with the goods, as he with previous agreement or arrangement went to purchase an article which he knew to be smuggled, notwithstanding that the act stopped at an attempt to purchase. In these circumstances even though Sitaram had not come into actual possession of the smuggled gold before the police intervened, there was no doubt that he was concerned in dealing with prohibited goods. The Hon ble Supreme Court therefore was of opinion that the Hon ble High Court was in error in holding simply because the purchase was not complete that Sitaram was not concerned in dealing with the sm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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