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2017 (12) TMI 79 - AT - Central ExciseBenefit of N/N. 4/2006 dated 01.02.2006 - clearance of Cement - Revenue held a view that the main appellant availed the concessional rate of duty when they have cleared cement with brand name of another person - charge of clandestinely unaccounted clearance of branded cement was also made against the main appellant - Held that: - N/N. 4/2006 dated 01.02.2006 allowed concessional rate of duty for cement cleared by the appellant. One of the conditions to be fulfilled is that cement manufactured should not be from such clinker which is not manufactured within the factory and cement should not be bearing brand name or trade name (whether registered or not) of another person - The Revenue during investigation collected material as well as oral evidence to support the case that the main appellants had violated the conditions and avail ineligible exemption. The stationary used by the appellant, the packing material available in the factory and the statements of responsible person of the main appellant corroborated the case of the Revenue. The unaccounted clearance is also evidenced by private document corroborated by the statement of the Director of the main appellant. Admittedly, the main appellant did make clearances of cement which were not entered into in the RG-I register. The reasons recorded by the original authority are based on material as well as oral evidences gathered during investigation. The appellant’s present appeal cannot bring in any categorical contrary evidence to persuade us to interfere with the said impugned order - there is no merit in the appeal fined by the appellant and two of its Directors against confirmation of demand and imposition of penalties - penalties imposed on the paid employees namely Sh. Ram Kishor, Authorised Signatory and Sh. Bhawani Singh Sekhawat, Munim/ Supervisor of the main appellant are not justifiable. They acted as per the direction of the Directors, as paid employees. They did not gain personally in these transactions - penalty u/r 26 of the CER, 2002 on them is not justifiable. Regarding penalties imposed on M/s Kamdhenu Cement and Sh. Satish Kumar Kabu, Director of M/s Kamdhenu Cement, the only allegation in the proceedings against them is that they were part of alleged document in the form of letter dated 31.12.2007 to claim termination of agreement for use of “Kamdhenu” brand - Held that: - the termination per se by itself will not help the main appellant to claim the concession under the said notification - No other action or role on the part of these two appellants have been discussed to justify penalty on them under Rule 26 of the Central Excise Rules, 2002. Further, the forged nature of the termination letter could not be categorically established with corroboration as no verification was made from the signatories of the said letter. We also note that the provision which is invoked in the impugned order was notified only w.e.f. 01.03.2007 - penalties set aside. Appeal allowed - decided in favor of appellant.
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