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2015 (12) TMI 865 - AT - Central ExciseWaiver of pre deposit - clandestine removal - preparing parallel Central Excise invoices - Evasion of duty - Confiscation of goods - Penalty under rule 26 - On investigation by the DGCEI Officers it is revealed that manufacture company has not accounted for production of paints and clear the same without payment of duty of ₹ 88,79,846/- during the period of March, 2007 to April, 2010 either by issuing parallel invoices/ non issue of invoices collection of sale proceeding in cash etc - Held that:- In the case of duty evasion by the company wherein present appellants are directors, this Tribunal has passed the order No. S/311/14/EB/C-II dated 27/5/2014 and directed company to make pre-deposit of 50% of the total duty evaded. In the said order all the issues such as merit of the case and principle of natural justice have been carefully considered and passed a very detailed and reasoned order and this Tribunal found a prima facie case of evasion of duty. As regard the role of the present appellants in the case, it is observed that Shri. Manoj Pyarelal Mittal, Managing Director of the Company deliberately with a planned modus-operandi by preparing parallel Central Excise invoices have evaded excise duty. As regard the role of Shri. Yogesh Kumar Mittal, he has knowingly helped the company and Shri. Manoj Pyarelal Mittal by returning the parallel invoices so that to destroy the same. From the above facts it is clear that both the appellants were collided and master minded the entire offence of evasion of excise duty. As regard submission of the Ld. Counsel that penalty under Rule 26 cannot be imposed since goods not confiscated, we are of the view that it is not necessary that the goods should be confiscated in order to impose penalty under Rule 26 Penalty under Rule 26(i) is imposable on the person who has knowledge that the goods is liable for confiscation. In the present case, while clearance of excisable goods clandestinely without payment of excise duty, both the appellants were having full knowledge that goods are liable for duty and clearance of the same without payment of duty make goods liable for confiscation. Therefore act of the appellants are more than sufficient to invoke Rule 26 of Central Excise Rules, 2002. Since this Tribunal has already taken prima facie view as regard evasion of excise duty against the company in the it’s stay order dated 27/5/201, the argument of Ld. Counsel on merit, principle of natural justice of no help - Partial stay granted.
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