TMI Blog2009 (5) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... nst one M/s. Shree Saibaba Copper Private Limited (100% EOU) on the allegation and findings that the duty on the imported raw material was diverted by them in the open market instead of consuming the same for the proposed use. The said M/s. Shree Saibaba Copper Pvt. Limited is not before us. The two appellants Shri Digvijaysingh Jhala and Shri Hemendra J. Shah are against the imposition of penalties of Rs. One Crore upon them, in terms of Rule 26 of Central Excise Rules, 2002. The other two appellants M/s. Mehul Roadways and M/s. Leelam Roadways had challenged the imposition of penalty of Rs. one lakh imposed by the same impugned order of Commissioner. 2. Arguing on the appeals, Ld. Advocate Shri V. Sridharan submits that both the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that at the time of executing B-17 bonds by the 100% EOU in the year 2002, when the Company came into existence, the solvency certificate given along with the said B-17 bond was incorrect, inasmuch as the same reflected the solvency status of Shri Jhala instead of showing the solvency of the Company. He submits that Shri Jhala in his statement has clarified that such solvency certificate annexed with B-17 bond was given by the Company without his consent and knowledge and he was not aware of the same. He has not appended his signatures on any of the document. He also regretted for giving false information by the Company but clarified that he was not aware of the same. In any case, submits the Ld. Advocate that the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said retraction has held the same to be an after thought. He submits that if that be so, the statement dated 4-2-2005 given by Shri Ashish Aggarwal completely exonerates the presence of the appellants, and is in his favour, in which case, no penalty can be justifiably imposed upon the appellants. 5. After going through the findings of the Commissioner and the various portions of the statements of the different persons to which out attention has been drawn during the course of hearing, we find that Commissioner has not disputed the resignation of the said two appellants from the Directorship of the unit w.e.f. 17-2-2003. Admittedly, when the 100% EOU was raided by DRI in August 2004, the appellant had no relation with the said unit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that as to why the LRs reflected the goods as Copper Ingots when the same were copper wire scrap, Ld. Advocate clarified that the LRs were being prepared in the office under the instructions of the 100% EOU and the drivers who gets the goods loaded from the factory premises, may not be aware of the difference between the description of the goods reflected in the LRs and goods being loaded in the Trucks. Ld. Advocate has also not been able to rebut the findings of the Commissioner, that in some cases no LRs were being issued. Admittedly, when the description in the LRs is different than that the actual goods, and when no LRs being issued in some cases, the knowledge on the part of the transporters, as regards the tainted nature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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