TaxTMI 
TaxTMI 
2003 (4) TMI 215
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....very high labour turnover. The Company had to manage its day-to-day operations with the locally available work force. Therefore, the required skill levels were not met by them. The Company's Registered Office is located at Bangalore and the marketing and administration departments were also accommodated at the Registered Office. The books of accounts including the Central Excise Records were maintained by the production staff at Kunigal under overall guidance of administrative office at Bangalore. In these circumstances, on 20-7-98, a consignment of crown closures of torino orange was cleared under Invoice No. 167/20-7-98 by the dealing assistant without making debit entries in the PLA or RG 23A Part II and in the RG 1 Registers though the entries were made on the Invoices. This consignment was intercepted by the Central Excise Officers, who on verifying with the factory records, found the same to have been cleared without any debit entries. Hence, they seized the said goods valued at Rs. 1,30,416.00 under a Mahazar. They also immediately undertook the verification of records at the factory and found other entries in the RG 23A Part II in respect of clearances effected under Invoic....
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....eipt of this order. (c) I also order confiscation of the truck bearing registration No. KA 05 5320 valued at Rs. 5,00,000/- seized on 20-7-98 at Kunigal under Mahazar dtd. 20-7-98 in terms of Rule 173Q read with Rule 209 of the Central Excise Rules, 1944. However, I give an option to the concerned to pay a redemption fine of Rs. 1,00,000/- (Rs. One lakh only) in lieu of confiscation under Sec. 34 of the Central Excise Act, 1944. This option has to be exercised by the concerned within one month from the date of receipt of this order. (d) I also impose a penalty of Rs. 3,13,481/- on the assessee under the provisions of Sec. 11AC of the Central Excise Act, 1944. (e) A penalty of Rs. 2,00,000/- (Rs. Two lakhs only) is also imposed on the assessee under the provisions of sub-rule (8C) of Rule 52A of the Central Excise Rules, 1944. (f) A penalty of Rs. 2,00,000/- (Rs. Two lakhs only) is also imposed on the assessee under the provisions of Rule 173Q of the Central Excise Rules, 1944. (g) &n....
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....C amounting to Rs. 3,13,481/- it was submitted that Section 11AC was not applicable since there was no wilful suppression or mis-statement on the part of the appellant and they relied on the Supreme Court decision in the case of Pushpam Pharmaceuticals [1995 (78) E.L.T. 401 (S.C.)] and Cosmic Dye Chem. Pvt. Ltd. [1995 (75) E.L.T. 721] to submit that this was not a case where mandatory penalty should have been imposed. In any case, the payments of Rs. 1,60,652/- had been discharged much before the issue of the notice. Therefore, mandatory penalty was not imposable on that demand. (e) The imposition of penalty under Rule 173Q was not also not sustainable in view of the Apex Court decision in the case of Tamilnadu Housing Board [1994 (74) E.L.T. (9) (S.C.)]. (f) The order of confiscation and Redemption fine of Rs. 3 lakhs was not called for as regards the goods under seizure from various premises. Since the goods have been provisionally released, the redemption fine of Rs. 3 lakhs imposed was very high and was not called for and prayed as follows : - (i) &nbs....
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....ired to be determined. The confiscation order of these goods as arrived at in Para 41 of the impugned order cannot be upheld. The same is therefore required to be set aside. (c) As regards the demand of Rs. 5,648/-, as per Annexure-J on differential values, the ld. Advocate for the appellant did not press the appeal as regards the same and mentioned that the said amount has been paid. The finding of the adjudicator as regards the levy and determination of this amount is therefore, required to be confirmed. This issue is a dispute on interpretations for valuation, which does not call for a penalty in this case. (d) As regards the duty amount of Rs. 1,37,181/-, on goods cleared to different customers, but on the same invoice numbers as per Annexure-D of the Show Cause Notice, the Commissioner has come to a very categorical finding after taking into account the invoice numbers issued and the goods consigned and on a perusal of the replies and xerox copies of the relevant pages of the registers, he concluded as follows : - "....On a perusal of the assessee's replies and the xerox copies of the releva....
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....ssioner found "being the Managing Director of the unit, he is expected to have been aware of the entire activities of the company and if there was any violation, it could have been only with his knowledge. Hence, I hold that penalty under the provisions of Rule 209A of Central Excise Rules, 1944 is imposable on Shri Prashanth Hegde." This finding has been arrived at on an expectation of a presumed, assumed conduct on part of the Chairman, Managing Director. No penalties could be imposed on assumptions and presumptions and therefore penalty of Rs. 1 lakhs, under Rule 209A, on the Managing Director cum Chairman is required to be set aside. He cannot be held liable for multiple clearances on same invoices and therefore penalty for the same as being Chairman and Managing Director, he is not responsible for the day-to-day clearances being effected from the factory situated far away in the backward area. (g) As regards the penalty of Rs. 2 lakhs imposed on Shri T.H. Nanje Gowda, Works Manager, authorized signatory, the Commissioner has found as follows : - "Shri T.H. Nanje Gowda, Works Manager is the authorized signatory of the assesses company....