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2009 (7) TMI 341 - AT - Central ExciseExport goods procured duty free and diverting the same in the local market and submitting false proof of export – Appeellant having declared themselves as merchant-manufacturer and having enjoyed benefit of receiving the goods for export without payment of duty, if they are allowed to claim that they are not liable to pay duty on the ground that they had not executed bond, it would mean allowing them to enjoy the benefit of fraud and profit from fraud. This is totally against law and public policy and no individual can be allowed to benefit from fraud – Held that if penalty imposed on firm, separate penalty cannot be imposed on proprietor - in the case of proprietary firm, it becomes necessary for the Commissioner to identify the person chargeable with duty and he should not and cannot merely confirm duty against the name of the firm, especially when it happens to be a case where person is only a dummy owner and the real owner is behind the scene. Therefore, we have to hold that Commissioner had not acted beyond the scope in identifying the person chargeable with duty - The next point is whether duty can be demanded under Section 11A – Held that Section 11A covers any type of short levy or non-levy for the purpose of recovery, we hold that Section 11A has been correctly applied. Once recovery is upheld under Section 11A, interest shall also be payable as per the provisions of Section 11AB - Held that penalty cannot be imposed on deceased person and if imposed cannot be recovered from legal heirs – no penalty imposable on legal heirs - suppression cannot be alleged, so demand not sustainable on limitation – Regarding personal penalty, no case that V.L. Chalke not aware that goods liable to confiscation, so penalty is imposable – penalty also imposable u/r 14A for diversion of goods
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