TMI Blog2011 (10) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Nagar, SDR for Appellant Shri Ramesh Nair, Advocate for Respondent Per : Mr. M.V. Ravindran; This appeal is filed by the Revenue against the order in appeal No. KS/49-50/SRT-II/2010 dated 26.3.2010 2. Heard both sides and perused the record. 3. Issue involved in this case is regarding setting aside of penalty on the respondents by the learned Commissioner (Appeals). The respondent is an employee/ authorized signatory of M/s. Spectrum Fabrics (100%EOU). Officers of the Preventive Section visited the firm's premises and noticed shortages of goods which were imported to the tune of 5200 Kgs. Statement of the authorized signatory was recorded wherein he has admitted diversion of the said goods to local market without discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the search operations carried out, voluntary statements recorded under Section 14 of Central Excise Act, 1944 Section 108 of the Customs Act which were never retracted and are admissible, hence the same deserves to be quashed and set-aside. (b)The Commissioner (Appeals) has committed a substantial error of law in setting aside the separate penalty imposed on Shri Iqbal Jusub Memon, authorised signatory of the unit under Section 112 (b) of the Customs Act, 1962 despite having confirmed the duty demands on account of unaccounted raw material, and its illicit diversion. (c) The Commissioner (Appeals) has committed a substantial error of law in setting aside the penalty imposed under Section 112(b) of the Customs Act, 1962 on Shri Iq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, shall be liable to a penalty no exceeding the value of such goods or five thousand rupees, wherever is the greater." (f) The Commissioner (Appeals) has further erred in law in not appreciating and considering that the assessee having impersonal entity was acting through its authorized signatory and, therefore, had clearly erred in law in setting aside the penalty on the authorised signatory of the unit, more particularly when in the statement of the authorised signatory recorded under Section 14 of Central Excise Act, 1944 Section 108 of the Customs Act, there was a clear admission as regards illicit removal also which were never retracted. (g) The Commissioner (Appeals) has failed to appreciate, consider and notice that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is carrying out instructions of employer. The relevant extract of the said judgment is reproduced below; "7. Now, I come to the appeals filed by Shri Amin Chandrakant Bhailalbhai and Shri Gautam Upadhyay. These two persons are employees of M/s. Associated Plastics and Rayons. They were clerks in the employment of the EOU and they were carrying out the instructions of their employer. They are not autonomous individuals who have played any part on their own volition in the evasion of duty. No penalty was justified on them. According, their appeals are allowed." 7. We find that in the decision of the Tribunal in the case of Carpenter Classic Exim Pvt. Limited, the co-ordinate bench has taken a view that personal penalty on the employee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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