AI Drafter 
TaxTMI 
TaxTMI 
2024 (11) TMI 1146
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.... out of such duty free yarn, in the local market without fulfilling their export obligation arising out of availment of the aforesaid Notifications. Later, in order to show fulfillment of their export obligation, the said E.O.U's obtained Advance Licences/Advance Release Orders through their local agents and manipulated their records to show clearance of excisable goods as if manufactured by them, against such Licences/A.R.O's, so that the said records could be used to show their deemed export by which their export obligation would be shown to have been fulfilled. 1.1 The DRI and DGCEI investigated and confirmed that the said EOU's only falsified their records without manufacture or removal of any excisable goods against the said Licences/ARO's, that clearances were made only on paper against certain Advance Licence Nos./ ARO's against which no goods were moved from their units, that in none of the cases any Advance Licence/ ARO's were submitted to the officers in charge of EOU's. It was also found from that the Advance licences/ ARO's against which only false entries were made in their production and clearance registers only to show fulfillment t....
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....e penalized. On the same set of fact, the appellant has been exonerated from penalty in the decision of this Tribunal reported as T.S Makkar Vs. Commissioner of Central Excise, Surat -2014 (312) ELT 427 (Tri.-Ahmd.), wherein on the issue of imposition of penalty on the appellant there were difference of opinion between the Hon'ble Member (T) and the Hon'ble Member (J), due to which the third Member was appointed and he passed the following order:- "25. [Order per : M.V. Ravindran, Member (J)]. - This Difference of Opinion is listed before me as per orders of Hon'ble President for deciding the points of difference arose between the Bench while deciding the Appeal No. E/855/2009. 26. Following Difference of Opinion are indicated:- (i) Whether in the facts and circumstances, it has to be held that Shri T.S. Makkar was aware that the licences were fake, forged or fictitious as held by Member (Technical) or it has to be held that Shri T.S. Makkar was not aware of this fact as held by learned Member (Judicial)? (ii) Whether it can be held that all the evidences relating to Shri R.K. Gupta have not been further investigated by DRI as held by learned Mem....
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....ce of probability. In para 19.2 the learned Member (Technical) has recorded his findings on this point while holding that the appellant was aware about the fake, forged or fictitious nature of the licences. His reliance has been mainly on oral statements suggesting that - (i) A heavy premium of 30% was payable coupled with understanding that no supplies would be made and there would be only paper transactions, (ii) The appellant told Shri R.C. Jain that AROs could be used by textile companies particularly EOUs for fulfilling their export obligations and if the suppliers were not genuine AROs could fetch 30 to 35% premium, (iii) The appellant ensured that he got all the documents from the 100% EOUs sent to Shri R.K. Gupta, got them endorsed and returned to the 100% EOU. 30. He also relied on involvement of the appellant and Shri R.C. Jain in a case relating to forgery of shipping bills and DEPB licences detected by DRI, wherein they were arrested and detention orders under COFEPOSA were issued against them. On the other hand, the learned Member (Judicial) observed in para 13 that there was no evidence on record to show that it is the present appel....
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....ing of anticipatory bail by Shri R.K. Gupta in the Court of District Sessions Judge, Delhi along with case number of the same, the learned Member also examined whether the fact that Shri R.K. Gupta was not traced by the DRI can help the appellant in any way. However, it is seen that no serious efforts to trace Shri R.K. Gupta, by taking help of Shri Nitin Rastogi, Shri K.D Sharma. the court records in the Court of District Sessions Judge, Delhi are forthcoming from the records. It therefore appears that no serious efforts were made to locate Shri R.K. Gupta, and I have no hesitation to hold so. 3rd point : Whether in the facts and circumstances of the case it has to be held that the appellant was not aware of misuse of the licences by M/s. Kay Bee Tex Spin Ltd. for showing fictitious export and therefore appellant cannot be held to be aiding and abetting the said 100% EOU as held by learned Member (Judicial) or it has to be held that Shri T.S Makkar was aware that no goods would be cleared but only paper transactions will be made and therefore he could be said to be aiding and abetting duty evasion as held by Member (Technical)? 32. Oral statements of the followin....
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....nalty is imposable under Rule 209A only if excisable goods are dealt with by the person concerned with knowledge of liability of confiscation, and that even where any person has issued only invoices without actual movement of the goods, the said rule cannot be pressed into service for imposing penalty. The following judgments relied by the appellant were also to the same effect. 1. 2004 (165) E.L.T. 206 (Tri.-Del.) Kamdeep Marketing Pvt. Ltd. v. C.C.E., Indore 2. 2004 (178) E.L.T. 578 (Tri.-Chennai) D. Ankineedu Chowdary v. C.C.E., Chennai. 36. I am not persuaded to accept that these precedents would not have a binding effect in the facts of the instant case. These decisions are specific on the very issue in question, and are not where there is a mere passing observation, without there being same or similar issue in question. These precedents are authority for what had been actually decided, deducible from the application of law to the facts and circumstance of case, and not some conclusion based upon facts which may appear to be similar. In absence of any evidence of the involvement of the appellant in dealing with the goods in any manner whatsoever, the....