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2019 (6) TMI 1317 - AT - Central ExciseClandestine removal - shortage of finished goods and excess in the stock of raw material - sale of flats as such - the contentions of appellant have not been considered properly - principles of natural justice - HELD THAT:- Since the appellant company is willing to pay the Central Excise duty demandable from them, their contentions about violation of principles of natural justice etc. are not being considered - One of the main contention of the appellant company is that the suppliers of goods had collected Central Excise duty from it while supplying the goods without invoices, and some of the suppliers had already deposited the said duty with the Department and considerable amount of duty has been confirmed against other suppliers. The appellant company has submitted that since the duty has been deposited by / demanded from its suppliers, their duty liability should be reduced by the said amount as they had already paid duty amount to its suppliers - It is observed that though the appellant company has taken this stand since the beginning, even during the course of investigation, the Revenue has not controverted these facts. The documents resumed by the Revenue and relied upon in show cause notice, also supports this fact - Thus where the amount of duty has been deposited by the suppliers, the duty liability of the appellant company is ordered to be reduced by the said amount. Sale of M.S. Flats as such - HELD THAT:- The records resumed by the officers and relied upon in show cause notice and the impugned order clearly show purchase of M.S. Flats by the appellant company. This is evident from the profit & loss account of the appellant company scanned in the show cause notice itself. Once the Revenue has placed reliance on resumed documents and data retrieved from laptop, it cannot claim that M.S. Flats were not purchased and sold as such. The documents have to be believed in toto and not in part only. Further, the Revenue has not brought any material to show that the purchased M.S. flat were used in or in relation to manufacture of any other product - thus duty of excise is not demandable from the appellant company, on the quantity of M.S. flats purchased and sold as such - Similarly, the duty of excise cannot be demanded on the quantity of Miss Rolls sold as such by the appellant company. Penalty - HELD THAT:- Penalty on the appellant company is imposable under Section 11AC of the Central Excise Act, as the finished goods have been removed without payment of duty. However, we agree with the learned Advocate that separate penalties are not imposable on Directors and former Director once the penalty under Section 11AC has been imposed on the company - Further, penalty is not imposable on Ankit Keriwal, as he was a mere employee bound to follow the directions of the company management. Moreover, there is no material to show that Ankit Keriwal has gained anything personally. We, therefore, set aside the penalties imposed on all directors/ former Director and Manager (Ankit Keriwal). The learned Commissioner is directed to compute the duty amount payable by the appellant company as modified in this order, and communicate the same to the appellant company - appeal allowed by way of remand.
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