2016 (2) TMI 634

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..... 2. The brief facts of the case are that the factory premises of M/s. Samleshwari Packaging was inspected on 12.3.2008. It was found that during the financial year 2007-08, the sale invoices in the name of Rohini Polymers containing invoice Nos. 76 - 100 was found wherein invoice No. 76  83 and 85 -90 were issued during the period 20.2.08 to 31.3.08 without payment of Central Excise duty. Statement of Shri Pawan K Agarwal, Director was recorded, who admits that M/s. Rohini Polymers is a firm under ownership of his wife who is engaged in the stitching of bags and such work was undertaken on the machine installed in the factory premises of M/s. Samleshwari Packaging Pvt. Ltd. and machine does not belong to Rohini Polymers. The appell....

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....y under Rule 26 of the Central Excise Rules, 2002 is not imposable on M/s. Rohini Polymers. Therefore, penalty on Rohini Polymers is to be set aside as held by this Tribunal in the case of Elango Ravi vs. CCE [2006 (198) ELT 47 (Tri)] and Avishar Processing Pvt. Ltd. [2006 (198) ELT 53 (Tri)]. 4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that in this case it is an admitted fact that appellants were engaged in the manufacturing of goods clandestinely. Therefore, the relevant date for computation for extended period is 5 years from the date of knowledge of their activity of clandestine removal as held by Honble Apex Court in the case of CCE, Visakhapatnam vs. Mehta & Co.[2011 (264) ELT 481 (SC....

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.... the decision of Triveni Engineering & Industries Ltd. and in that case also, the Honble High Court has held that the show cause notice did not indicate there was a deliberate act of suppression of fact or mis-statement. But in the case in hand, the charge of deliberate evasion of duty has been alleged against the appellant. Therefore, the facts of the case in Mehta & Co. (supra) are squarely applicable to the facts of this case. In these circumstances, I hold that duty is correctly demanded from M/s. Samleshwari Packaging Pvt. Ltd. along with interest and penalty imposed is correct. As contended by the learned Counsel that demand of duty should be calculated as cum duty price which is correct as the appellant has not charged any duty over....