AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2008 (5) TMI 288
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....aged SMALEX by means of a Memorandum of understanding for getting their goods manufactured on job work basis and cleared the same without payment of appropriate duty on the actual value as per Section 4 of the Central Excise Act read with Central Excise (Valuation) Rules, 1975. The Central Excise officers verified the documents and relevant records on 1-10-1996, during which several documents including the Memorandum of understanding were recovered. On perusal of the invoices and the documents, it came to light that on the raw materials supplied by INDAL, on job work basis SMALEX manufactured Aluminium extrusions and delivered the finished goods to the customers of INDAL as per the directions of INDAL. The Memorandum of Understanding between SMALEX and INDAL reads as follows :- "(i) the covenants of the manufacturer (i.e.) SMALEX are as follows :- (a) SMALEX shall receive the raw materials supplied by INDAL along with excise invoice, delivery challan and sales tax form, SMALEX shall take Modvat credit for the same. (b) SMALEX shall thoroughly study the details of orders placed by INDAL and draw out time bound production plan and intimate the same to INDAL. (c) SMALEX shall manu....
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....e of Rs. 38,32,550/- during the said period and thereby A-1 to A-4 have committed offences covered under Section 9(1)(a), 9(1)(b), 9(1)(bb) and 9(1)(c) of the Central Excise Act 1944 read with Rules 9(1), 52A, 173G, 173F, 174 and 226 of CER, 1944. Accordingly, A1 to A4 are punishable under section 9(1)(a)(i), 9(1)(b)(i), 9(1)(bb)(i) and 9(1)(c)(i) of Central Excise Act 1944, read with Section 9AA." Based on the above materials collected during verification and on the basis of the statements recorded from various persons, including the petitioner, the respondent laid the private complaint before the learned Additional Chief Judicial Magistrate, Madurai against a total number of six accused. The first accused is SMALEX company; the second accused is the Project Manager of the SMALEX; the third accused is INDAL; the fourth accused (the petitioner herein) is the Senior Marketing Executive in INDAL; the fifth accused is another company known as M/s. Agents Aluminium Co. Ltd., and the sixth accused is the Director of the fifth accused. The offences said to have been committed are punishable under Sections 9(1)(a), 9(1)(b), 9(1)(bb), 9(1)(c), 9(1)(d) of Central Excise Act 1944 read with ....
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....itiated against INDAL for recovery of interest and for imposition of penalty also abate; (ii) The penal proceedings proposed on SMALEX under erstwhile rule 209A are hereby dropped; (iii) I hereby confirm an amount of Rs. 4,450.00 (Rupees Four Thousand four hundred and fifty only) under Section 11A(2) of the Central Excise Act, 1944 as differential duty on SMALEX towards the goods cleared to buyers under AACL's fnvoices, by invoking the larger period of limitation under the proviso to Section 11A(1). The amount of Rs. 4,450.00 paid under T.R.Challan No. 23/97-98 dated 19-1-1998 is adjusted towards the same after vacating the protest; (iv) I hereby confirm an amount of Rs. 84,499.00 (Rupees Eighty Four Thousand Four Hundred and ninety nine only) on SMALEX under erstwhile Rule 57(2) read with erstwhile Rule 57(1) of Central Excise Rules, 1944 by invoking the larger period of limitation under the Proviso to Section 11A(1) of the Central Excise Act, 1944. The amount of Rs. 84,499.00 paid under T.R.Challan No. 24/97-98 dated 19-1-1998 is adjusted towards the same, after vacating the protest; (v) I impose a combined penalty of Rs. 5,000/- (Rupees Five Hundred only) on SMALEX under ers....
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....as well as the other persons, there are materials to show that INDAL manufactured goods at the premises of SMALEX, sold away the same to various customers during the relevant period and did not pay the duty in time and thus, there is evasion of payment of duty. Thus, there are strong materials available making out a prima facie case. 11. The next penal provision is Section 9(1)(bb) of the Act. It says that removal of excisable goods in contravention of any of the provisions of the Act or any rules is punishable. In this case, as stated above, there are materials to make out a prima facie case that excisable goods which were manufactured by INDAL at the premises of SMALEX at Madurai were sold to various customers and they were also removed. The statement of the carrier of the goods viz., one Mariyappan, Branch Manager of Rajalakshmi Transport, Madurai would go to show that he used to take delivery of Aluminium finished goods from SMALEX and transported the same to various destinations and when the consignments were loaded in his lorries, the consignor's name was always indicated as INDAL in the way bills as well as in the outward Register. These materials would make it clear that e....
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....ppellate Authority and when the matter is so pending before the Commissioner for adjudication, on remand, private complaint for non-payment of duty is not maintainable. But, in the case on hand, final order has been passed by the Commissioner wherein he has clearly stated that INDAL is the manufacturer. So, the argument advanced by the learned Senior Counsel that the private complaint is liable to be quashed in view of the order passed by the Commissioner cannot be accepted at all. 15. The next ground raised by the learned Senior Counsel is that the Central Board of Excise and Customs, New Delhi by letter F.No. 208/31/97-CX.6, dated 12-12-1997 has enhanced the monetary limit to launch prosecution from Rs. 5 lakhs to Rs. 25 lakhs prospectively so as to ensure better utilization of man power, time and resources of the Department. Relying on the said letter, the learned Senior Counsel would submit that since the levy in this case is for less than Rs. 25 lakhs, the prosecution is liable to be quashed. The learned Senior Counsel would rely on a judgment in Laxmi Narayan Sharma v. Superintendent, C. Ex. & Cus. reported in 1996 (87) E.L.T. 345 (Raj.) to substantiate his contention that s....