Custom, Excise & Service Tax Tribunal
Cce, Kanpur vs Shri Manoj Kumar Pani on 3 August, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT No. II CENTRAL EXCISE APPEAL NO. 2118 of 2008-SM [Arising out of Order-in-Appeal No. 253-254/CE/APPL/KNP/2008 dated 17.06.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Kanpur] CCE, Kanpur Appellant Reptd. by Shri I. Baig, SDR Versus Shri Manoj Kumar Pani, Director Respondent
None Date of Hearing/decision: 3rd August, 2010 Coram: Honble Shri D.N. Panda, Judicial Member FINAL ORDER NO. DATED Per D.N. Panda:
None present for the respondent. He has made an application for deciding the appeal on merit.
2. Learned D.R. supported the order of the adjudicating authority stating that the this respondent had full control over the day-to-day affairs of the company and he was aware of the fact that the goods had been cleared without issuing invoices with intent to evade payment of duty. Therefore, he is liable to personal penalty. Learned Commissioner (Appeals) ignoring valuable piece of evidence waived the penalty against the respondent. Therefore, adjudication is required to be restored.
3. Heard both sides and perused the record.
4. Revenue has come up in appeal against the first appellate order wherein the Commissioner (Appeals) found that this respondent was not directly responsible for the discrepancies in stock for which he should not be penalized. Para 7 of the show cause notice brought out charges against the respondent which reveals that being the Director of the unit the respondent appears to have full control over the day-to-day affairs of the unit and he must be ware of all the activities being carried out in the unit. In his statement dated 11.02.2006 he admitted that the goods were cleared without issuing any invoice with an intent to evade duty. Therefore, it appears that he must be aware of the activities carried out in the unit. The adjudication order says that the respondent was looking after day-to-day affairs of the party and was, thus responsible to ensure that appropriate Central Excise duty and Education Cess was paid on the excisable goods at the time of their clearance from the factory. It may be noticed that when there was doubt about the involvement and control of the respondent on day-to-day affairs in the show cause notice, how adjudication order inculpated him and involved him in the activities of looking after day-to-day activities without cogent evidence. The adjudication appears to have traveled beyond the show cause notice without examining the statement recorded in the year 2006. It is common sense that no one shall confess that goods were cleared without issuing invoices with intent to avoid payment of tax to cause him prejudice. All these doubts do not permit the quasi-criminal proceedings to sustain. It may be stated that because penalty is prescribed by law that shall not be automatically imposed. The governing facts and attendant circumstances with cogent evidence should suggest that the doer has submitted himself to the offence or the questionable act. In the present case the facts and circumstances failed to suggest to bring the respondent to that fold. Consequently Revenues appeal is dismissed.
(Dictated & pronounced in the Open Court.) (D.N. PANDA) JUDICIAL MEMBER RK 3