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TMI Blog2004 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise and without payment of duty as provided under the said Notification. They disposed off part of the capital goods at Mysore and Bangalore, besides selling some of the equipment to M/s. Trilux Electric Pvt. Ltd., Bangalore and Director, Shri N.P. Choubey, Executive Director, Shri Werner Reining, Managing Director, Shri N.P. Choubey, Executive Director, Shri Subhash K. Shetty, Shri Vinay Chandra, Shri P.M. Bansali, Directors of M/s. RLIL were aware of the activities of the Company and have wilfully assisted and abetted in various offence committed by M/s. RLIL. During the investigation it was found that M/s. RLIL are liable to pay customs duty of Rs. 1,57,42,614/- on the capital goods imported by them. On investigation, it was found that M/s. Trilux Electric (P) Ltd. and M/s. Devi Wires and filaments had purchased equipments which had been clandestinely removed from M/s. RLIL without payment of duty and without following the procedures. It also appeared that the goods purchased by them are liable for confiscation. Based on the investigation, show cause notice was issued to M/s. RLIL requiring them to pay customs duty of Rs. 1,57,42,614/- and for impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business and therefore they were under no obligation to determine whether the goods had suffered customs duty or not or whether their import was licit or not. They relied on the judgment of the Apex Court in case of Collector v. Decent Dying Co. 1990 (45) E.L.T. 201 (SC), wherein it was held that the good in the market are presumed to be duty paid. Without giving a finding that M/s. RLIL has imported goods of Italian Origin, the Commissioner would not have proceeded to confiscate the goods belonging to the appellants and imposing a redemption fine. They penalty imposed on the appellants is harsh and much more than the total value of the goods purchased by the appellant's Company. They therefore pleaded that the impugned order may be set aside and the appeal be allowed. C/346/2000 4. Shri N.P. Choubey in his appeal memo and during the hearing of the appeal pleaded that he was appointed as Executive Director of M/s. RLIL by a letter of appointment dated 4-1-96 issued by the Company and signed by its Managing Director Mr. Werner Raining. He was also issued a Power of Attorney granting certain powers to act on behalf of the Company. He submitted a letter of resignation to the Managi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s based on a Power of Attorney executed and which was in force only till the date of resignation and acceptance of his resignation. He relied on the decision of the Tribunal in case of Z. Alvi, G.M. BHEL v. CCE - 2000 (36) RLT 721 wherein it was held that - "Penalty on an executive of the company was not impossible as the employee has nothing to gain in making any evasion or fraud on the Government in any manner. He therefore pleaded that penalty imposed may be set aside. C/348/2000 5. Shri K. Parmeswaran, ld. Advocate appearing for the appellants, M/s. Devi Wires and Filaments, pleaded that the appellants are proprietary concern belonging to Shri J.B. Poojari, residing at No. 168, I Main, Jayalakshmipuran, Mysore. Four lamp filament winding machines, said to be illegally and clandestinely cleared by M/s. RLIL, Mysore, were seized from the appellant's premises. The Proprietor of the appellants Shri J.B. Poojary did not have knowledge about the importation of the said machines. He purchased the machines as normal commercial transaction on payment of Rs. 1,30,000/- and had to even undertake repairs, they made payment of Rs. 50,000/- by cash and Rs. 80,000/- by cheque to M/s. Bhav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. C/343/2000 We find from the show cause notice that there was a proposal to confiscate the machinery seized from the premises of M/s. Trilux Electric Pvt. Ltd. and also M/s. Devi Wires & Filaments. M/s. Trilux Electric Pvt Ltd. pleaded that no show cause notice was issued to them although their Director Mr. Padmanabhan has been show caused. Shri Padmanabhan has filed a reply on the charges made against him. Since there was no show cause notice issued to the Company who had purchased the goods, therefore, the impugned goods cannot be confiscated without issued of show cause notice to the Company. We find that the Commissioner in his order in Para 75 has mentioned that the Counsel of Shri Padmanabhan had brought to the notice of the adjudicating authority that Company was not put on notice regarding confiscation of the said machines. The Commissioner observed that Para 71 (ii) of the show cause notice includes name of M/s. Trilux Electric Pvt. Ltd. for showing cause against confiscation of the goods seized from their premises. He found that admittedly, there was a lapse in not addressing the show cause notice to them which is only an error or omission. However, Shri Padm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that M/s. Devi Wires and Filaments is a Proprietary concern of Shri J.B. Poojary. Since show cause notice was issued to the Proprietor Shri J.B. Poojary and there was a proposal in the show cause notice in Para 71 (ii) for confiscation of the seized goods from the premises and in Para 71 (iv) (f) for imposition of penalty on Shri J.B. Poojary, therefore, the plea that there is not separate show cause notice issued to M/s. Devi Wires & Filaments is not acceptable. Once the show cause notice has been issued to the Proprietor of the firm, it can also be treated as notice to the firm which is in existence because of the Proprietor. We find that the Commissioner has given his finding in paragraphs 75 to 77 of the order on the various submissions made by M/s. Devi Wires and Filaments. It is pleaded by the appellants that they have taken reasonable steps to ensure that goods purchased are not smuggled. We find that Shri J.B. Poojary, in his statement dated 12-3-98, stated that on Shri Bharath Kumar has approached him in his factory . He was intending to go for a new machine to meet production requirements and incidentally Shri Bharath Kumar arrived in his factory, and he informed Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a final reply to the show cause notice, the same can be filed on or before 13-10-99 and no extension of time will be granted to him. Despite several communications, he neither attended for personal hearing nor submitted his final reply to the show cause notice. We find that the Commissioner in his order in Para 82 has given finding on charge against Shri N.P. Choubey. The relevant Para 82 of the order is as under :- "82. Shri N.P. Choubey as then Executive Director of the company has also connived with Shri Werner Reining in the clandestine removal of the capital goods from M/s. Reining Lighting India Ltd. From the statements of Shri Azam Ali it is clear that Shri N.P. Choubey coordinated the arrangements for shifting the capital goods with the help of Shri Azam Ali. In his statement dt. 13-1-98 Shri N.P. Choubey has stated that the machinery were removed from M/s. Reining Lighting India Ltd. between 15-3-97 and 28-12-97 in about 8 to 9 trucks and the statement of Shri Azam Ali corroborates this fact. The keys to the factory were under the custody of Shri N.P. Choubey from whom it was taken by Shri Azam Ali for removing the machinery stealthy from M/s. Reining Lighting India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are not letters that could have been written by so called detractors of Shri N.P. Choubey to implicate him, by using the computer. This also proves that in spite of his so called resignation as Executive Director he continued to be the authorized signatory. In view of the above his argument that his statements were obtained under duress, is baseless. The arguments put forth by Shri Choubey are too for fetched to merit consideration. Documents relied upon in the case show that he had direct role in removal of the machinery form M/s. Reining Lighting India Ltd. The scribbling pad recovered on 22-1-98 from the premises of Shri N.P. Choubey is by itself sufficient to prove his involvement in the clandestine removal of the capital goods from M/s. Reining Lighting India Ltd. Shri N.P. Choubey had requested for the cross-examination of Shri Vinay Chandra, Subhash Shetty, Azam Ali and Shri Vishwendra Rao and Shri K.R. Sridhar, Superintendents of Central Excise to bring out the correct, truth and factual position of the instant case. The same was not permitted is as much as it has been proved that the equipment imported by M/s. Reining Lighting India Ltd. was removed with his active parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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