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2016 (3) TMI 898 - AT - Central ExciseSSI Exemption - Clubbing of clearance value of the proprietaryship firm with the private limited company - imposition of penalty on dummy units - Held that:- On perusal of the list of machineries, we find that these machineries were purchased during the period 1990 to 2001. The learned Advocate fairly submits that these lists were not placed before the Adjudicating authority. It is submitted that these lists were submitted before the Commissioner (Appeals). On a query from the Bench, the learned Advocate failed to place any evidence that these documents were placed before the Commissioner (Appeals). We find that the search was conducted in 2005 and the impugned order was passed in 2008. But the Appellant had not placed these documents before the lower authorities which are related to the period 1990 to 2001. The Assessee has not given any reasons as to why they have failed to disclose these evidences before the lower authorities and therefore, such evidence cannot be accepted before the Tribunal, at a belated stage. To sum up, it is evident from the records that there was no manufacturing activity in other units. Hence, the Adjudicating authority rightly clubbed the clearance value of other units with M/s BEW. Imposition of penalty on the dummy units cannot be sustained. According to the Revenue, the other units are dummy and therefore, imposition of penalties on the dummy units cannot be sustained. However, we find force that Shri Babubhai Mistry, Director of M/s CEPL and Proprietor of M/s BEW and Smt. Jasuben B. Mistry, Proprietress of the Assessee and Director of CEPL were involved directly in this evasion of duty. The learned Advocate submits that the quantum of penalty is excessive, which is required to be considered. We modify the impugned order to the extent that the demand of duty alongwith interest and penalty imposed on the Assessee is upheld. The penalties imposed on Shri Babubhai Mistry and Smt. Jasuben Mistry are reduced to ₹ 1 lakh (Rupees One Lakh only) and ₹ 50,000.00 (Rupees Fifty Thousands only) respectively. The penalty imposed on M/s CEPL and M/s Hitech, M/s BEW are set aside. The Assessee is entitled to pay penalty 25% of the duty alongwith entire amount of duty and interest within 30 days of communication of this order as provided under Section 11AC of Central Excise Act, 1944. The appeals of M/s Hitech, M/s BEW and M/s CEPL are allowed.
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