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2017 (11) TMI 648 - AT - Central ExcisePenalty u/r 209A of CER, 1944 - Clandestine removal - Revenue was of the view that RIL was consuming Ferro Chrome in excess hence, RIL have manufactured more quantity of billets/flats as against the quantity shown in record and cleared the same clandestinely without payment of duty - it was alleged that the appellant was responsible for his conduct to the business at the material time and the goods cleared from the factory without payment of appropriate excise duty is with his consent and connivance. Held that: - It has not been brought on record by the Revenue that from where the other inputs were procured and used in the manufacture of final goods. Further, I find that for the commission received by M/s. RIL it has been alleged that the same is towards the sale proceeds of the goods cleared clandestinely. Whereas the Revenue has issued a show cause notice to demand service tax on the commissions earned. In that circumstance, penalty on the appellant is not imposable merely on the charge that appellant has failed to satisfactorily explain the contradiction in various statements recorded during investigation, being overall in-charge of M/s. RIL. A specific role of the appellant has not been alleged for the activity of M/s. RIL. In that circumstance, penalty on the appellant is not imposable. Penalty set aside - appeal allowed - decided in favor of appellant.
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