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2022 (6) TMI 427 - AT - Central ExciseImposition of penalty under Rule 26 of the Central Excise Rules, 2002 - Advance Authorization scheme - diversion of imported goods procured duty free to the Appellant firm - HELD THAT:- The goods were diverted from AOPL to the appellant- M/s. Allure International, on the basis of email received from Allure International by AOPL. Thereafter, the Director, Shri Narinder Manghani of AOPL, used to send confirmation through return mail and on receipt of instruction, he himself as an employee used to take delivery of the goods from M/s. AOPL. The appellant - Shri Pankaj Khubani used to go to AOPL to take delivery on behalf of the Allure International, as per directions of the other partners and as he was the junior most in the firm. It is further observed in the impugned order that AOPL, Bhiwadi and their manufacturer suppliers took recourse to issue of fictitious documents to cover up the operations of the firm for diversion of duty free goods with intent to evade payment of duty on the said goods. It is further evident that in the course of investigation, Shri Pankaj Khubani, inter alia, stated that he was more or less a dummy partner in Allure International Ltd. and the actual persons controlling over the firm are Manghani Brothers. Further, he was working on the directions of the Manghani Brothers. Although AOPL procured duty free materials etc. for manufacture of goods for export but most of the time, such duty free inputs were transferred to DTA, without any accounting. It seems that the Adjudicating Authority has taken adverse view against the appellant – Shri Pankaj Khubani based on the notings in the raw materials of register of AOPL, wherein, it is mentioned that on certain dates, certain inputs were issued to Pankaj Khubani or Shri Pankajji. Manghani Brothers are the actual master mind and this is also supported by fact that Manghani Brothers were the directors in AOPL and were also the partners in Allure International. Thus, there appears to be no role in decision making in diverting the duty free goods from AOPL, by Pankaj Khubani. However, in the facts and circumstances, it is found that other appellant, M/s. Allure International, a partnership firm has committed the act of omission and commission by receiving the duty free goods without proper documents, as required under law, from AOPL. It is further evident that Manghani Brothers have taken advantage of its position for the purpose of diversification of the goods to DTA. Penalty on Shri Pankaj Khubani is set aside - appeal allowed in part.
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