TaxTMI 
TaxTMI 
2011 (5) TMI 38
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....h Tomar, Marketing Manager and Shri Sanjay Gaur, Manager of M/s. Balbir Rolling Mills Limited. 2. After hearing both the sides duly represented by Shri K.I. Vyas, learned advocate and Shri J.S. Negi, learned SDR, I find that M/s. Balbir Rolling Mills Limited (not appellant before Tribunal) is engaged in the manufacture of MS Bars and Angels. The factory of said M/s. Balbir Rolling Mills Limited was put to search by the Preventive Staff on 08/09-8.2005. As a result, one spiral diary containing details of illicit clearances of their final products was recovered and certain shortages were also detected by the officers. Statement of various persons including appellants was recorded admitting clandestine removal of their final products....
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.... Commissioner. Hence, vide present impugned order, Commissioner (Appeal) has disposed off all the six appeals by a common order. It may be clarified that appeal of M/s. Balbir Rolling Mills Limited is not the subject matter of the present appeals, as the impugned order is only in respect of the penalties imposed upon the above three appellants. 5. Learned advocate Shri K.I. Vyas, appearing for the appellants submitted that the lower authorities have imposed cumulative and composite penalties under Rule 26 of the Central Excise Rules, 2002, read with Section 11AC of the Central Excise Act, 1944, which is not permissible. For the above proposition, he has relied upon the Tribunal decision in the case of Kamlesh Kumar Goel vs. CCE, T....
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....der Rule 26. The allegation as regards contravention of the provisions of law and the role played by the present appellants was clearly brought out in the show cause notice. I also note that in the discussion part the Additional Commissioner has come to clear findings that the appellants are liable to penalty under Rule 26. It is only in the operative part of the order that the words read with Section 11AC of the Central Excise Act, 1944 stands introduced. The appellate authority has already held that the said addition of the Section 11AC needs to be deleted. As such, it can be safely concluded that the present case is not the one where the allegation are not clear, the invocation of right provisions of the law in the show cause notice is n....
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....ory legislations operates in two different arenas and the authorities imposing the penalty are required to make up their minds, as to which provisions of specific enactment operating in two different fields stands contravened by the noticee. In the present matter, as already observed the allegations right from the beginning were clandestine manufacture and clearance and the proposal was to impose penalty upon the appellant in terms of the provisions of Rule 26. The findings of the original adjudicating authority are also to that effect. As such, the appearance of Section 11AC in the operative portion of the order cannot be made the basis for setting aside the penalties upon the appellants. 8. As regards the quantum of penalties, w....