Commissioner Of Central Excise, Trichy vs M/S. A.P. Steels
- CitationAppeal No.88/2010
Ratio decidendi
The rule this decision rests on
Where duty is confirmed on a finding of clandestine removal of goods, evidenced by shortages, chits and unaccounted entries in note books, a concession in penalty is not available, since granting one would encourage evasion. A person who, as a manager, is found by the adjudicating authority to have actively facilitated unaccounted removal of goods, and whose role is left unrebutted in the proceedings below, cannot be relieved of liability on appeal merely because the appellate authority has made no finding against him beyond that already recorded.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.88/2010, dated 31.05.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirapalli]
COMMISSIONER OF CENTRAL EXCISE, TRICHY APPELLANT
Versus
M/s. A.P. STEELS RESPONDENT
E/00626/2010
[Arising out of Order-in-Appeal No.88/2010, dated 31.05.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirapalli]
M/s. A.P. STEELS APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, TRICHY
RESPONDENT
E/ 00664/2010
[Arising out of Order-in-Appeal No.88/2010, dated 31.05.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirapalli]
D. PURUSHOTHAMAN APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, TRICHY RESPONDENT
Appearance:
For the Assessee Shri M. Kannan, Adv.
For the Revenue Shri M. Rammohan Rao, DC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 22-06-2015
FINAL ORDER NO. 40691-40693 / 2015
The only contention of the Respondent M/s. A.P. Steels in appeal No.E/00626/2010 is that when duty was not payable, that was arbitrarily determined by both the authorities below and also penalty was imposed baselessly.
2. But Revenue submits that when duty was confirmed on clandestine removal of goods there should be no concession in penalty and grant of any concession to clandestine removal shall be bonus to evasion encouraging the same to perpetuate. Therefore, the concession in penalty given by Commissioner (Appeals) should be reverted and adjudication order should be restored.
3. Heard both sides and perused the record. The fact found by the appellate authority both in respect of shortage of goods and removals made as exhibited by chits discovered and entries found in the note books demonstrated unaccounted removal of goods resulting in evasion of duty. Therefore, demand of duty was confirmed. In such circumstances, no question of concession in penalty arises since that would encourage evasion. This can be said following the decision of the Honble High Court of Bombay in the case of Commissioner of Central Excise & Customs, Aurangabad Vs Padmashri V.V. Patil S.S.K. Ltd., reported in 2007 (215) E.L.T.23 (Bom.). Therefore, adjudication order is restored dismissing appeal of M/s. A.P. Steels and Revenue appeal is allowed restoring the adjudication order insofar as the penalty is concerned.
4. So far as appeal of Shri D. Purushothaman is concerned, the adjudicating authority has brought out as to how this appellant, as a Manager acted as master mind to cause evasion in para 38 of his order. He has categorically brought out active role of this appellant demonstrating how he has facilitated removal of the goods without being accounted for. That being unrebutted in the course of the proceeding before authorities below ruling out his role, , there is nothing to disturb the finding of Commissioner (Appeals) in this regard. Accordingly, that appeal is also dismissed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 24-06-2015
DRAFT Remarks
I II III
Date of dictation 22.06.2015
Draft Order - Date of typing 22.06.2015 24.06.2015
Fair Order Typing 24.06.2015
Date of number and date of dispatch 29.06.2015
2 E/00524, 00626 & 00664/2010
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