TaxTMI 
TaxTMI 
2026 (5) TMI 793
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....tory premises or from M/s Clear Acid, Bangalore after charging. As a result of search operation 615 Nos. of fully finished batteries were seized and they were allowed to be released provisionally. Thereafter detailed investigation was conducted and after recording statements from various persons, 2(two) show cause notices were issued to the Appellant for the confiscation of seized batteries and one for demand of duty on the batteries and plates cleared from the year 2005-2006 to 2009-2010 (up to October 2009). Thereafter Adjudication Authority as per the Order-in-Original No. 31/2011 dated 30.09.2011 confirmed the demand along with interest and also imposed penalty on Shri. R. Kandaswamy, Partner of the Appellant under Rule 26 of the Central Excise Rules, 2002. Aggrieved by said order, an appeal was filed before this Tribunal along with petition for stay and while considering the issue, this Tribunal as per the Final Order No. 20212-20213/2014 dated 11.02.2014 observed that:- "According to Revenue, in this case, there was clandestine removal whereas according to the appellant there was no clandestine removal but there is trading activity. But documents and evidence require....
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....by our suppliers to our office address located at no. 231, 1st main, 3rd Cross, KSRTC Layout, 2nd Phase J.P. Nagar, Bangalore- 560078. We are storing the purchased finished batteries meant for trading only in our office address located at no. 231, 1st main, 3rd Cross, KSRTC Layout, 2nd Phase J.P. Nagar, Bangalore- 560078. To the best of my knowledge, none of the purchased finished batteries meant for trading have come to our factory located at A-59, KSSIDC Industrial Estate, Bommasandra, Bangalore-560099. As already mentioned above, the finished batteries meant for trading come in pre-packed condition. We sell the batteries as such. In stray cases where we find that the packing has been damaged, we re-pack the same at our office or at our warehouse located at B-20, KSSIDC Industrial Estate, Bommasandra, Bangalore-560099. The finished purchased batteries are moved from our office to the warehouse under cover of Delivery Challans". Q 11. Please see Mahazars dated 22.10.2009 drawn at your factory, warehouse and office, wherein documents as mentioned in the Annexure to Mahazars have been seized. Amongst the documents are stock transfer delivery challans raised for batteries cl....
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.... manufacturing activities in the factory premises and it is held that the statement confirmed the fact that the batteries manufactured by the Appellant prior to April, 2009 were stock transferred to their office premise under the delivery challan. It is manufacturing in the factory premises situated and further it is held that Appellant has not adduced any proof of sending the traded batteries to the factory for charging. As regards the statement relied in the show cause notice, Learned Counsel submits that though the so-called production and delivery of goods are allegedly recovered from the computer printout maintained by the Appellant, same cannot be admitted as having evidentiary value without complying the condition under Section 36B of the Central Excise Act, 1944. None of the conditions prescribed in Section 36B has been followed and as such there is no evidential value. In the absence of any other evidence and when these print outs are taken as standalone evidence, it is absolutely mandatory to comply with the conditions prescribed in this situation. 6. Learned Counsel also draws our attention to the specific direction given by this Tribunal while considering the issue i....
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....r repacking such items after testing or repacking were sent to warehouse. Therefore, the delivery challan could also to be raised from the factory for traded batteries and the same was stated while recording the statement. As regards Appeal No. E/23561/2014, learned counsel for the appellant submits that once alleged illegality committed by the main appellant is unsustainable, penalty on appellant alleging abetment of said illegality is also unsustainable. Learned Counsel also draws our attention to the decision of the Hon'ble High Court of Gujrat in the matter of Pravin N Shah Vs. CC- 2014 (305) E.L.T 480 (Guj) wherein it is held that where no specific Rule is attributed to the partner in the firm, then once firm has already been penalised, separate penalty cannot be imposed upon the partner because a partner is not a separate legal entity and cannot be equated with employee of a firm. 10. Learned Authorized Representative (AR) reiterated the finding in the impugned order and also draws our attention to the judgment of Hon'ble High Court of Himachal Pradesh in the matter of M/s. MIS International Cylinders Pvt. Ltd., and the decision of the Tribunal relied in the impugned order....
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....duction Sales Invoices -01.04.2009 - 31.07.2009 7 Production Sales Invoices -01.08.2009 onwards. Trading Sales Invoices - 2009-10 8) 9 Purchase file of Raw Material - 2007-08 FLAT FILES - 2005-06 Delivery Challans(DC) for stock transfer 10) - 2006-07 Delivery Challans(DC) 11) - 2007-08 Delivery Challans(DC) 12) - 01.04.2008 to 31.12.2008 Delivery Challans(DC) 13) - 01.01.2009 - 31.03.2009 Delivery Challans(DC) 14) - 01.04.2009 onwards 15) Delivery Challans(DC) 16) VAT-515 Forms - 01.01.2009 to 31.03.2009 - 01.04.2009 onwards 17) VAT-515 Forms Delivery Challans received for Battery repair 18) Delivery Challans received for Battery repair 19) Delivery Challans received for Battery repair 20) 21) Daily Production/Sales details from Jan'06 to Oct'09 & Balance Sheet for 2006-07, 07-08 & 08-09. Purchase Register (PRO) - 2009-10. 22) 23) Sales Register(PRO) - 2009-10. T.Y. GADEKAR Ramsay Leget Pulsar 22/10/09 Chandown Banylow Witness No. 1 Typed by me 8 (B.N/GOVINDARAJU) Witness No. 2 Dundya 22/10/09 Inspector of Central Excise HPU, Bangalore I Commissionerate, Bangalore Befor....