TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1073
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....the commercial and business activities including manufacturing and production of goods for export from July, 2001. The said unit was engaged in the manufacture of mattresses, cushions and readymade garments. Shri Surendra B. Verma, the appellant was involved in the working of the said unit as power of attorney holder. 2.2 The search operation by the Central Excise officer of Valsad Commissionerate was carried out on 14th February, 2003 in the said unit. The Panchnama was drawn on 14th February, 2003 in the presence of Shri Sitaram Sharma who was the Manager cum Authorized Signatory. During the course of stock verification of finished goods and raw material, certain shortages were found in the finished goods and raw material. The manager of the unit admitted that they have sold the goods in the open market without payment of duty as per the instructions of the appellant. 2.3 The statement of Manager Shri Sita Ram Sharma was recorded on 14.02.2003 by the department wherein he informed the department that the said unit will pay the duty on the said goods which were cleared without payment of duty. The statement of the appellant was also recorded by the department on 20.02.2003 under....
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....artment did not have any general power of attorney available in their record at any given time from the stage of carrying out the investigation commencing from 14th February, 2003 and upto the stage of passing and issuing the order-in-original dated 27th July, 2016 said to have been issued by the proprietor of the said unit in 2001. The general power of attorney was not in existence since it was never issued by the proprietor of the said unit. In the show cause notice dated 31st December, 2006 and in the impugned order-in-original dated 27th July, 2016, no specific date of the general power of attorney was issued has been mentioned and no such date has been mentioned when it was given to the department and when the department took it on record for accepting Shri Surendra Verma as an Authorised Signatory. Therefore, Shri Surendra B. Verma, the appellant, did not have any general power of attorney having been issued by the proprietor Shri Kirit Kumar Chhotelal Modi of the said unit, consequent upon which, it was never submitted and filed with the department and the appellant did not have any locus-standi in the said unit in terms of the provisions contained under Rule 2 (c) of the Ce....
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....f deposit made by the appellant which is to the tune of Rs. 2,25,000/- may be allowed to be refunded to him. 4. The learned AR on the other hand argued that the impugned order has been passed in accordance with rules and no interference is required in the said order. He has filed a copy of decided case Excise Appeal No. 10545 of 2016 M/s. Divyangbhai J. Shah vs. C.C.E. Ahmedabad in which this Tribunal has held that in view of the overall facts of the matter and quantum of cash stated to be found and explicit knowledge of offending goods not being on record on the part of the appellant, there is a case made out for lesser penalty and the penalty was reduced from 5,50,000/- to Rs 1,25,000/-. 5. I have heard the learned AR for the department and perused the synopsis and written submission submitted on behalf of the appellant. 5.1 The first submission of the appellant is that the impugned show cause notice was issued on 31.10.2006 whereas the Order-in-Original was issued on 27.07.2016 and it was communicated to the appellant on 31.08.2016. As the Order-in-Original has violated sub-Section (11) of Section 11A of Central Excise Act, 1944, the show cause notice as well as the Order-in-....
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....rtunity of personal hearing by the Department several times but they did not respond. At page 19, para-3 of the Order-in-Original, the Commissioner has stated that in the interest of natural justice, the noticee and the co-noticees were asked to file their submission and attend personal hearing in the matter fixed on 08.04.2015 but no one appeared for personal hearing on the given date. Subsequently, the personal hearing was fixed on 07.07.2015, 25.08.2015 and 27.11.2015. The personal hearing letters sent to the noticees were returned undelivered. The personal hearing letter dated 13.01.2016 was forwarded to the JAC, Central Excise Division- Umbergaon to deliver the same to the noticee and co-noticee. The JRO vide letter dated 22.01.2016 informed that since the premises were closed, the personal hearing notices of the noticee and co-noticee have been pasted at the given address under Panchnama dated 21.02.2016. Another personal hearing letter dated 16.02.2016 was issued to the noticee and co-noticees but neither any response received from their side nor any one appeared. 5.2 The second plea raised by the appellant is that Karnavati Garments and Mattresses (100% EOU) was a Propriet....
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....committed an offence of the nature as described in Rule 26 of Central Excise Rules, 2002 rendering themselves liable for penal action under said Rule 26 of Central Excise Rules, 2002. I agree with the conclusion arrived at by the learned Commissioner in the Order-in-Original. 5.3 The next submission of the appellant is that Memorandum of Understanding dated 22.11.2001 was not a valid legal document to attract penal action on the appellant under Rule 26 of Central Excise Rules, 2002. It has been submitted by the appellant that Memorandum of Understanding was executed on 22.11.2001 and it was notarized on 09.12.2001. It was executed by the appellant with Shri Shyam T. Bihani and Shri Mahendra B. Verma and it was a private document because it was never submitted and filed with proper authority or Court of law nor it was submitted in any bank. It was not even submitted with Central Excise or Customs department authorities. This Memorandum of Understanding was given to the department by the appellant only on 09.10.2006. I do not agree with the above submissions made by the appellant. Merely because the Memorandum of Understanding was not submitted earlier before any Court of law, Bank....