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2022 (10) TMI 93 - AT - Central ExciseLevy of penalty - Applicability of ration of decision made in the case of co-noticee - SSI Exemption - Clubbing of clearances - dummy units - Split Air conditioners - all such different entities are being owned by same person or not - documents which were obtained fraudulently by suppressing the facts or not - Confiscation - HELD THAT:- The Appellant 2 and Appellant 3 admitted to their role in the alleged activities for evading the central excise duty they also admitted the fact that they were collecting the duty @ 30 % on the value of goods supplied to their Customers as Central Excise Duty as per the contract, but were not paying the same to government account. Hence, there are no hesitation in holding that the both Shri Shrikant Shiwadkar and Shri Jayant Shiwadkar were in complete knowledge of the things in relation to clearance of these goods without payment of duty. These goods which have been cleared without payment of duty are liable for confiscation and hence penalties under Rule 2009A is justifiable and cannot be faulted with. It is also not in dispute that the no appeal against this order dated 09.01.2002 was filed by the revenue and other co-noticee in the show cause notice i.e. Shri Jayant Shirwadkar and Mrs H S Shirwadkar. In result the proceedings against these two co-noticees have become final and cannot be reopened by the Commissioner in de-novo proceedings as per the order of tribunal remanding the matter back to original authority in the appeals filed by M/s UCSSPL and Shri Shrikant Shirwadkar. Also in absence of the appeal by revenue against this order the order has acquired finality and Commissioner cannot have passed any order beyond the order passed by his predecessor. In view of this fact, the Commissioner order imposing penalty on Shri Jayant Shirwadkar cannot be sustained and the penalty imposed on Shri Shrikant Shirwadkar cannot be in excess of the penalty imposed by this order. Appeal filed by the Appellant 1 against the imposition of penalty under Rule 173 Q (1) is partly allowed to the extent of restricting the penalty imposed under this Rule to Rs 1,80,000/- - Appeal filed by Shri Jayant Shirwadkar (Appellant 2) against the penalty imposed by the Commissioner in this remand proceedings needs to be allowed - the appeal filed by Shri Shrikant Shirwadkar (Appellant 3) against penalty imposed under Rule 209A also is allowed partly restricting the penalty imposed under Rule 209A on him to Rs 50,000/-. Appeal by the Appellant 1 is partly allowed modifying the impugned order to the extent of reducing the penalty imposed under Rule 173 Q (1) to Rs 1,80,000/- and setting aside the impugned order to the extent it relates to confiscation of land, building, plant & machinery, material or other belonging of M/s UCSSPL used in connection with the production, storage, removal or disposal of the goods - appeal allowed in part.
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