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2014 (8) TMI 776 - AT - Central ExciseClearance of industrial oxygen without issue of invoice and without payment of excise duty - Interest u/s 11AB - Penalty u/s 11AC - Held that:- SCN dated 23.06.2005 had clearly brought out the total quantity of 4879 cubic metre of industrial oxygen removed without invoices and without payment of duty during the material period. From the documents and the computer data retrieved from the CPU seized from the appellant company and the statements recorded from the Managing Director and from the Manager (Sales), proved beyond doubt that the appellants had cleared the goods without payment of excise duty. It is also admitted by the appellants that the sale value of the impugned goods was received in the guise of transport charges. It is also noticed that the adjudicating authority has duly allowed the SSI exemption benefit under Notification No. 8/2003 and also cum-duty benefit while confirming the demand. The suppression of facts and malafide intention of the appellants to evade payment of duty is established beyond doubt, therefore, I do not find any reason to interfere with the Commissioner (Appeals) order in so far as confirming the duty of ₹ 1,98,830/- and imposition of equivalent penalty on M/s. Senthil Oxygen Pvt. Ltd. and the impugned order is liable to be upeld to this extent. As regards penalty imposed on Directors of Company - Held that:- department has not issued any notice to them alleging involvement and contravention of provisions for imposition of penalty. I find that the Commissioner (Appeals) in his impugned order while rejecting the appeals of both the appellants has not brought out any findings for imposition of penalty. It is well settled law that before imposing any penalty on any person, issue of show cause notice is mandatory and he should be given opportunity to explain his case and in the present case the principle of natural justice has not been complied nor the adjudicating authority has given any hearing to the individuals before adjudication. Therefore, the penalty imposed on both of them are liable to be set aside - Decided partly in favour of assessee.
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