2023 (5) TMI 563 - AT - Central Excise

Levy of penalty Personal Penalty on accountant - Rule 209 A of Central Excise Rules, 1944 - valuation of captively consumed yarn - failure to include the expenses such as bonus, gratuity, interest and marketing expenses and in the cost of yarn which has been used captively - no personal hearing was accorded to the appellant - principles of natural justice - HELD THAT:- It can be seen from the plain reading of the Rule 209 A that the person who is to be penalized under this provision needs to have physically dealt with the dutiable goods and have done certain acts which have made the subject goods liable for confiscation. He is consciously in the know of this very fact that by acquiring possession of such goods by transporting such goods and dealing with in other manners, will be render the goods liable for confiscation.

The appellant was only an accountant who was doing normal accountancy work. The issue of valuation of captively consumed yarn is a matter of the interpretation and therefore the penal provision of Rule 209 A of Central Excise Rules, 1944 cannot be invoked against the person who is only involved in maintaining the accounts of the company.

The Order-In-Original has not followed the principle of natural justice, as no personal hearing was accorded to the appellant. It is also no where mentioned in the Order-in-Original as to what efforts had been made by the department to serve notice of personal hearing to the appellant. Thus the matter was decided against the appellant in gross violation of principle of natural justice.

The Order-In-Original concerning the penalizing the appellant under Rule 209 A of the Central Excise Rules, 1944 is concerned, same is without any merit - Appeal allowed.