Customs, Excise and Gold Tribunal - Mumbai
Mukesh Metal Industries Pvt. Ltd. vs Commr. Of C. Ex. And Cus. on 21 September, 2006
ORDER M. Veeraiyan, Member (T)
1. These are appeals filed by M/s. Mukesh Metal Industries Private Limited (hereinafter called "the appellant company") and Mr. Piyush Shyamkaran Vyas, Manager and authorized signatory of the appellant company against the Order Nos. RKS/241-242-243/DAMAN/04 dated 28-9-2004 of the Commissioner (Appeals) by which he has upheld the order-in-original passed by the Dy. Commissioner of Central Excise, Valsad Division by Order No. BLS/273/2001 dated 28-12-2001 in so far as they relate to these appellants are concerned.
2. Heard both sides.
3. The relevant facts of the case, in brief, are as follows :
(a) On 16-12-1998 excisable goods carried in a truck without excise documents were intercepted at the entrance of GIDC, Killa Pardi, N.H. No. 8, Dist. Valsad and brass pipes weighing 3547.400 kgs., valued at Rs. 5,60,489/- were seized along with the truck carrying/transporting the illegally removed excisable goods.
(b) Verification at the factory indicated that last invoice was issued on 10-12-1998 only and Shri Piyush Shyamkaran Vyas, Manager and authorized signatory of the appellant company admitted the removal of the goods clandestinely without payment of Central Excise duty.
(c) On application by the appellant company seized goods were provisionally released on execution of bond with bank guarantee for a sum of Rs. 1,40,122/-.
(d) The Dy. Commissioner confirmed demand of duty of Rs. 1,20,093/-; ordered confiscation of the offending goods, imposed a fine of Rs. 1,40,122/- in lieu of confiscation and appropriated the same from the bank guarantee furnished at the time of provisional release of their goods. A sum of Rs. 10,000/- was also imposed as penalty on Shri Piyush Shyamkaran Vyas, Manager and authorised signatory of the appellant company.
4. One of the points urged on behalf of the appellants is that the show cause notice dated 10-5-1999 was served only on 8-8-2001 but got antedated as if it was served on 10-5-1999. This issue has been raised before the original authority as well as before the Commissioner (Appeals) and these allegations were found to be not acceptable. No evidence has been brought in to upset the findings in this regard.
5. It is submitted on their behalf that as duty has already been paid before the issue of show cause notice no penalty can be imposed. Also the manager is not liable for a separate penalty in terms of order of CESTAT in S.R. Patel v. Collector of Central Excise, New Delhi .
6. In this case, the goods were seized near the National Highway and that too, at 06.05 hrs. in the morning of 16-12-1998. The Manager has clearly admitted loading of the goods in the truck in his presence in a clandestine manner which was subsequently seized by the officers away from the factory. Having been caught redhanded in a case of outright clandestine removal, they cannot make virtue out of necessity.
7. As regards the penalty on the Manager it is an admitted case that he was personally present when the goods were clandestinely loaded in the truck from the factory and without Central Excise documents and were intended to their Mumbai office. His admission clearly proves his knowledge and intention. Since there is a specific and significant role in the clandestine removal on the part of the manager imposition of penalty on him is justified. The case laws cited are clearly distinguishable from the facts of the case.
8. It was also submitted that since the goods have been provisionally released and not available for confiscation imposition of fine is not warranted. In this case the goods were removed clandestinely and were seized at very odd hours from the highway. The goods seized have been provisionally released under bond with bank guarantee. The offending nature of the goods and the offences have been clearly established. As the goods have already been seized and released provisionally and when the goods are not produced for confiscation, imposition of fine in lieu of confiscation in terms of the bond is not irregular. If this fine in lieu of confiscation is not upheld then the procedure of provisional release of the seized goods will become impractical and detrimental to the as-sessee. Therefore the order imposing fine in lieu of confiscation in terms of the bond is also to be upheld.
9. The appeals are therefore rejected.
(Pronounced in Court on 21-9-2006)