TaxTMI 
TaxTMI 
2018 (8) TMI 319
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....t Kambla Padavu, Kurnad, Mangalore and that all the units are managed by Shri Naushad Ahmed and partners and that all the firms are commonly known as M/s. A.K. Group Firms. It appeared to the Department that these four groups have been clearing their goods to the customers/dealers under the cover of invoices which are raised from their factories and the invoices showed only a part of selling prices of the goods cleared. 2. It was alleged that the actual prices used to be circulated or informed to the customers separately; the value/prices shown in the invoices were only 50% of the actual price and amounts over and above the bill were normally paid by the customers in cash to the representative of the firms. The Department, inter alia, relied upon the following: (i) E-mail message dated 12.11.2002 supposed to be sent by One Shri Manilal P. Suther, Partner of M/s. Vishnu Sales to M/s. A. K. Group firms which reads as under: "Now keep the above mentioned material ready, I am sending you the total amount mentioned above. As talked to you over phone I want at least 50% to 65% bill and now give me the details on which name I should send the DD." (ii) A handw....
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....bsp; SCN No.46/05-06 OIO No.45/05-06 dt.27.11.2006 OIA No.177/2007 dt.4.4.2007 2 E/493/2007 M/s. Nafeesa Frameworks Rs.15,07,556/- Rs.15,07,556/- u/s 11AC Rs.5,00,000/- u/Rule 25 Remanded to Original Authority (No appeal is filed) Mr. Nazeem Ahmed Rs.2,00,000/- (No appeal is filed) Mr. Niyam Ahmed Rs.2,00,000/- SCN 47/05-06 OIO No.35/2006 dt.11.12.2006 OIA No.176/2007 dt.4.4.2007 3 E/592/2009 A.K. Boards & Doors Rs.28,10,357/- Rs.28,10,357/- u/s 11AC Rs.10,00,000/- u/R 25 Rs.6,61,769/- Rs.6,61,7 69/- 4 E/593/2009 Mr. Niyaz Ahmed Rs.5,00,000/- Rs.50,00 0/- 5 E/594/2009 Mr. Seeliya Simmith Rs.5,00,000/- Rs.50,00 0/- SCN 47/05-06 OIO No.10/2007 dt.28.2.007 OIA No.99/2009 dt.18.3.2009 6 E/59....
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....ts. The same can only be applied to a particular transaction but cannot be generalized. They relied upon Goyal Tobacco Co. Pvt. Ltd.: 2017 (348) ELT 720 (Tri.-Del.). They also relied upon CESTAT's decision in the case of CERA Boards and Doors: 2010 (249) ELT 550 (Bang.) wherein it was held that post 1.7.2000, the allegation of undervaluation under transaction value regime has to be proved with evidence in respect of each and every removal. 3.2 The learned counsel submitted that all the firms involved are partnership firms and therefore, penalty cannot be separately imposed on them. They placed reliance on the following decisions: * Pravin N. Shah vs. CESTAT: 2014 (305) ELT 480 (Guj.) * Jaybee Industries vs. CCE: 2004 (168) ELT 316 (Tri.-Del.) * Kedarnath Silks Mills vs. CCE: 2006 (195) ELT 58 (Tri.-Bang.) 4. The learned DR has reiterated the findings in Orders-in- Original and Orders-in-Appeal and stated that learned Commissioner (A) has addressed all the concerns expressed by the appellants and the case laws quoted by them has been duly differentiated. The learned Commissioner (A) has given a fair order and has confirmed the demands only to the ext....
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....ith a direction that the quantification of evasion on the basis of evidence available on record is required to be restricted with reference to the actual evidence available and cannot be extended to those transactions which relate to other dealers/customers where no evidence is available. In respect of two cases, the learned Commissioner (A) has obtained a report from the jurisdictional Commissioner on quantification of duty to be demanded in adherence to the principles enumerated above. On the basis of the reports given by the jurisdictional Commissioner, the learned Commissioner (A) in the case of M/s. A.K. Boards (E/592/2009) and M/s. A.K. Panels (E/595/2009) has set aside the penalties imposed on the firms under Rule 25 holding that an equivalent penalty has already been imposed under Section 11AC of the Central Excise Act, 1944. In view of the decision of Rajasthan High Court in the case of CCE vs. Banswara Syntex Ltd.: 2007 (212) ELT 171 (Raj.). He has reduced the penalties on the partners and however, did not agree with the appellant's contention that no separate penalty is imposable on the partners in view of the cases cited by them in their defence. The learned Commissione....
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....s per the statements of the dealers, they had purchased excisable goods knowingly paying a lower amount on which duty was paid and paying the balance in cash. We find that these statements are incriminating the dealers themselves because they had connived with the assessee in evading excise duty. This was also for their gain. They could be penalized under the Act and Rules made thereunder. If such incriminating statements were obtained by the coercion, it was expected of them to retract the same as early as possible. None of them had admitted any such retraction. Retractions came a couple of years later when the assessee-appellant arranged their cross- examination before the adjudicating authority. The statements recorded are all under Section 14 of the Central Excise Act. The Central Excise officers are not police officers and the statements recorded by them are valid evidence. Moreover the statements find corroboration in the documents recovered by the authorities. In the absence of retraction or allegation of coercion to give an involuntary statement, we were inclined to accept their initial statements as voluntary and valid evidence." We find that the in the case cited above, t....
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.... of extortion or coercion regarding the statement, confession cannot be said to have been extorted by coercion or was not voluntarily and that "Retraction of confessional statements after a period of more than six months from the date of its recording not attached any credence". This answers the second question raised above. 7. Coming to the third question of applicability of penalty on the partners of the appellants. We find that learned Commissioner (A) opined that as penalty under 11AC is imposed on the firms, penalty on firms under Sections 25/26 is not required. Learned Commissioner (A) has however, reduced the penalties imposed on partners. We find that in the case of Pravin N.Shah vs. CESTAT: 2017 (52) STR 217 (Guj.) it has been held that once firm is penalized, separate penalty is not imposable upon the partner of the firm because partner is not a separate legal entity and cannot be equated with employee of the firm if no specific role is attributed to partner. Similar views have been expressed in the following decisions: * CCE vs. Jai Prakash Motwani: 2010 (258) ELT 204 * Jaybee Industries vs. CCE: 2004 (168) ELT 316 (Tri.-Del.) By following the rat....