9911796707
TMI Blog2001 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... for taking on record 12 documents in support of service of documents on Appellant No. 1. We heard Shri A.K. Jain, learned Advocate for the Appellants and Shri A.K. Jain, learned SDR for Revenue and allow both the misc. applications. 3.Shri A.K. Jain, learned Advocate, submitted at the outset that the show-cause notice dated 20-11-97 was never served on the appellant company; that it was served only on Shri Arun Kumar Bansal in his capacity as Managing Director; that the reply submitted by Shri Arun Kumar Bansal was not submitted on behalf of the appellant company as he had submitted the reply on his own behalf; that the appellant company came to know of the show cause notice from the notice of hearing fixing the hearing on 9-3-2000; that the Appellants immediately informed the Commissioner under letter dated 9-3-2000 that they had not received any show cause notice which had been obtained by them from Shri Bansal and they had sent their representative to the Commissionerate to seek time; that in the absence of the service of the show cause notice no demand could be confirmed against them. He relied upon the decision of the Supreme Court in the case of Chintapalli Agency Talluk A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the appellant company regarding tendering of notice; that the Commissioner has also not recorded any finding in the impugned Order on the submissions made by them in their letter dated 9-3-2000. The learned Advocate also mentioned that the standard of proof in the case of positive fact is much higher than the proof of negative fact and reliance was placed on the decision in the case of Commissioner of Income Tax v. Patna Timber Works, 1977 (106) ITR 452 (Patna). The learned Advocate also submitted that it has not been disputed by the Revenue that the entire quantity of inputs shown to have been received by the Appellants were not received; that similarly the Revenue has also not disputed the consumption of inputs received by the Appellants; that the finished goods namely, Bulk Drugs manufactured by them attracts half of the duty leviable on the inputs purchased by them; that on the date of visit of the Central Excise officers there was a balance of Rs. 57.70 lakhs in their RG23A Part-II; that this is also evident from the fact that the Appellants never paid any duty from PLA and every time the goods were cleared and duty was paid from RG23-A Part II; that, therefore, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri Arun Kumar Bansal "for Laurel Organic Ltd."; that again Shri T.S. Rawat, Production Manager, under letter dated 17-12-97 clearly mentioned that after the raid conducted by the D.G., Anti Evasion on 20-12-1996 a show cause notice had been served to them; that Shri Rawat in the said letter requested the supply of relied upon documents; that Shri T.S. Rawat again under letter acknowledged the receipt of zerox copy of relied upon documents. The learned SDR contended that all these letters sent on behalf of the appellant company clearly reflect that the show cause was received by the appellant company; that once the letters from the Managing Director and the Production Manager are available on record, non-production of acknowledgement due or postal receipt etc. does not mean that show cause notice was not served on the appellant company; that in all the decisions relied upon by the learned Advocate no such availability of letters from senior officials of the company were available to indicate the receipt of the show cause notice; that in the year 2000 the Appellant company just cannot take the plea that show cause notice was not received by them in the light of the 3 letters refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable goods without payment of duty is implicit being the Managing Director of the Company. 8.In reply the learned Advocate mentioned that the affidavit in question has also been given by Shri A.K. Bansal who is the person concerned in requesting Shri T.S. Rawat to get the relied upon documents from the department; that as Shri Rawat was in Canada his affidavit cannot be given; that so long the central excise duty is not evaded the Excise Department cannot be concerned with the evasion of any other tax; that in any case the goods were entered in RG1 which shows their intention of not clearing the goods without payment of duty. Finally he submitted that there is no evidence of active involvement of Shri A.K. Bansal and penalty cannot be imposed on him under Rule 209A as held in the case of Kitply Industries Ltd. v. CCE, Shillong, 2000 (124) E.L.T. 595 (T) = 1999 (85) ECR 888 (Tribunal) and Garware Synthetics v. CCE, 2000 (116) E.L.T. 608 (Tribunal). 9.We have considered the submissions of both the sides. We do not find any force in the submissions of the learned Advocate that the show cause notice was not served on the appellant company in view of the following 3 letters relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the learned Advocate that the penalty under Section 11AC of the Central Excise Act cannot be imposed for the removal of the goods prior to the introduction of the said Section. This view has been consistently held by the Tribunal in a number of cases and has also been held by the Supreme court in the case of CCE, Coimbatore v. Elgi Equipments Ltd., 2001 (128) E.L.T. 52 (S.C.). However, the penalty for the clearances effected on or after the introduction of Section 11AC in the Act is imposable. In Kota Oxygen case, the Tribunal has upheld the imposition of penalty under Rule 173Q of the Central Excise Rules and in view of the fact that the period involved there from March, 1994 to March, 1997 the Tribunal held that no penalty under Section 11AC could have been imposed on account of duty evasion prior to 28-9-96 and the Tribunal set aside the penalty imposed under Section 11AC. This decision in Kota Oxygen does not, in our view, lay down the law that the penalty under Section 11AC cannot be imposed if major part of the demand pertains to the period prior to the Section coming into force. Further, in the case of VST Industries Ltd. v. CCE, Hyderabad, 2001 (138) E.L.T. 549 (Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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