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2019 (6) TMI 1273 - AT - Central ExciseImposition of penalty - illegal diversion of goods - re-warehousing certificates were not received - appellant has alleged that the EOU was sourcing various raw material duty free from manufacturer and diverting the same in the open market in violation of the Central Excise Rules - HELD THAT:- It is apparent that the appellants were not careful enough and were willing party to the diversion of goods by the consignee. In this regard, the affidavit filed by the transporter regarding delivery of goods at the premise of M/s Resham Exports also appears to have been obtained without knowledge of the transporter. In this regard the observation of the Commissioner in the impugned order reproduced above becomes relevant. From the said observation, it is seen that Shri Abhinandan Kataria, Manager of M/s Vardhaman and Shri Harish Natwarlal Bhatt, Proprietor of M/s Nirav in their statements have admitted that goods cleared by M/s Modern have been illicitely diverted. It is also seen that these submissions are supported by the statements of Shri Bodu Gulam Shaikh which was the representative of the consignee involving in the diversion of the goods. It is seen from the statements of Shri Anil Kataria dated 02.04.2004 that he was aware of the diversion of goods after clearance from the factory. It is also admitted position of the appellant that Shri Anil Kataria was their regular transporter. In the statements of Shri H.N. Bhatt dated 07.07.2004 he had reaffirmed that he has informed the representatives of appellant namely Shri Manmohan Agarwal about the diversion of goods and route. He also confirmed that Shri VK Sharma, was also aware of the facts. Another factor which is relevant is that during the short period of about 10 days they had cleared almost 100 consignments weighing 884 tonnes to one party. This fact itself should have raised alarm bells and doubts in appellant’s organization. In any case, it was responsibility of appellant’s to ensure delivery of goods - it is apparent that the appellants were aware of the diversion of goods en-route. Penalty upheld - appeal dismissed - decided against appellant.
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