TMI Blog2006 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... 24-1426/2004 - 922/2007-EX(PB)(LB), - Dated:- 12-10-2006 - S/Shri S.S. Kang, Vice-President, M.V. Ravindran, Member (J) and T.V. Sairam, Member (T) REPRESENTED BY : S/Shri Ravi Raghvan, Advocate, Puneet Bansal, Consultant and Bipin Garg, Advocate, for the Appellant. S/Shri R.C. Sankhla and Suresh Kumar, SDRs, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - The issue that is referred to the Larger Bench in this case is as follows : (a) Whether the decision of the division bench in the case of Shaper Chemicals Ltd. v. Commissioner of Central Excise, Mumbai-VII as reported in 2004 (173) E.L.T. 327 has laid down the correct law as regards the imposition of penalty under Rule 209A of the Central Excise Rules, 1944 and; (b) Whether the decision of the division bench in the case of Indian Roadways Corporation Ltd. v. C.C.E., Rajkot as reported in 2005 (187) E.L.T. 321 (Tribunal) = 2005 (71) RLT 203 has laid down the correct law in context of imposition of penalty under Rule 209A of the Central Excise Rules, 1944. 2. We find that the Tribunal in the case of Shaper Chemicals Ltd., (supra) has held that : "After hearing both sides an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for introduction of the said rule. 6. It can be seen that the said rule starts with the expression "Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing", which would indicate that all these acts are in respect of physical handling of the goods i.e. the acts could not have been done without handling or movement of the excisable goods. The words "who acquires possession" would indicate that the person sought to be penalized under this rule has to first acquire the possession and then do the activity of transportation etc. as contained in the rule. It is common knowledge, that the physical possession of the goods is a must for doing the activity of transporting etc. The words "or in any other manner deals with any excisable goods" indicate that it is to be read as an extension of the activities enumerated in the rule. It is found that this expression has been interpreted by the tribunal in the case of Godrej Boyce Mfg. Co. Ltd. v. CCE, Mumbai-II as reported in 2002 (148) E.L.T. 161 at paragraph 71 as under : "Sub-section (a) speaks of wider purport and would cover a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and. The relevant text of one of the specimen notices is reproduced hereinbelow :- OFFICE OF THE COLLECTOR OF CENTRAL EXCISE, DELHI ROOM No. 273, C.R. BUILDING, IP ESTATE NEW DELHI C. No. V(24) 15/3/CCE/DLI/Adj./94 Dated 23-3-1994 SHOW CAUSE NOTICE 1. " " 2. " " 3. " " 4. " " 5. " " 6. " " 6. In view of the foregoing, it appears that : (i) " " (ii) " " (iii) " " (iv) " " (v) " " (vi) It further appears that M/s Lodha Company, Bombay and M/s Jayanti Lal Thakkar Company Chartered Accountants of GTC have deliberately certified the books of accounts of GTC to be true in spite of noticing identical invoices/delivery challans raised by the franchise units of GTC and existence of these documents in the GTC records, one invoice under the cover of original GP-1 and other invoice of same serial number under the cover of zerox copy of the same GP-1 and then discounting of both from different banks and other financial institutions. From balance sheets of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in the case of Shaper Chemicals Ltd. (supra) is correct and does not require any reconsideration. 9. As regards the second issue in reference it can be noticed that the Rule 209A pre-supposes a knowledge as to the liability of the confiscation of the goods which being transported etc. It was argued extensively by the authorized representative for the department that the expression "Any person" would include any company or association or body of individual, whether incorporated or not. Reliance was also placed on the definition of the word person in Section 3(42) of The General Clauses Act, 1897, for this proposition. Undoubtedly the expression "Any person" would include a natural and unnatural person i.e. it would include in its ambit any company or corporation or body of individual/s. The moot question is that whether such unnatural body corporate has its own mind, to have knowledge that the goods are liable for confiscation. It is common knowledge that a corporation/company is run by a Board of Directors, who are individuals. They are the trustees of the shareholders of the corporation/company. The decisions taken by the Board of Directors would be for the company but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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