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2015 (4) TMI 1086 - CESTAT NEW DELHI

2015 (4) TMI 1086 - CESTAT NEW DELHI - 2015 (330) E.L.T. 240 (Tri. - Del.) - Clandestine manufacture and clearance of medicaments - pre-deposit of penalty imposed upon them under Rule 26 of the Central Excise Rules, 2002 - stay demand - Held that:- All the four noticees are directly involved in the illegal manufacturing and clearance of the medicines. In the interest of the Revenue, some terms need to be imposed upon them especially when the main accused M/s. Gold Star Pharmaceuticals Pvt. Ltd. .....

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posed upon the appellants M/s. Suraj Medical Agencies, Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar. Thus the balance of convenience is in the favour of the Revenue for imposition of penalty on these persons. Accordingly I differ with the findings recorded by learned Member (Judicial).

And to avail the facility to hear the appeals, it is necessary that all these appellants M/s. Suraj Medical Agencies, Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar are d .....

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h Kumar, Member (T) Shri K.K. Anand, Advocate, for the Appellants. Shri M.S. Negi, DR, for the Respondent. ORDER [Order per : Archana Wadhwa, Member (J)]. - It is seen that vide Stay Order Nos. 55665-55669/2013, dated 10-1-2013, stay petitions of the present applicants were disposed of along with stay petitions of the main appellant M/s. Gold Star Pharmaceuticals Pvt. Ltd., who were directed to deposit an amount of ₹ 1.15 crores. Subject to deposit made by M/s. Gold Star Pharmaceuticals Pv .....

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ave heard Shri K.K. Anand, learned advocate appearing for the applicant and Shri M S Negi, learned DR appearing for the Revenue. The prayer in the application is to dispense with the condition of pre-deposit of ₹ 10 lakh each imposed on M/s. Suraj Medical Agencies, Shri Roshan Lal Kwatra, Director of M/s. Gold Star Pharmaceuticals Pvt. Ltd. and partner of M/s. Suraj Medical Agencies, Shri Kashmir Chand. Further, penalty of ₹ 25 lakh was imposed on Shri Ashok Kumar Kwatra, Managing Di .....

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as also on financial condition of the appellants argued on the point that penalty under Rule 26 cannot be imposed on a firm i.e. M/s. Suraj Medical Agencies inasmuch as the same can only be imposed on a natural person as held by the Tribunal in the case of Woodmen Industries v. CCE, Patna [2004 (164) E.L.T. 339 (Tri-Kolkata)]. Said decision of the Tribunal stand upheld by the Hon ble Supreme Court when the appeal filed by the Revenue was rejected as reported in 2004 (170) E.L.T. A307. He also d .....

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tayed the operation of the order impugned before the High Court insofar as the same relate to penalty imposed upon under Rule 26. 5. We have considered the submissions made by both the sides. We find that the Tribunal s decision in the case of Woodmen Industries stand confirmed by the Hon ble Supreme Court. As such, in terms of the same, no penalty can be imposed on the firm M/s. Suraj Medical Agencies. 6. As regards the penalty on the individual, without going into the prima facie mer .....

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orting, removing, depositing keeping, concealing, selling or purchasing, or in any other manner dealing with any excisable goods that are liable to confiscation, is prima facie ultra vires of Section 11AC of the Central Excise Act, 1944. It is well settled that no penalty can be levied save by authority of law. Rule 26 is prima facie in excess of the Rule making power conferred under the Central Excise Act, 1944. 3. There will be an interim order restraining the respondents from giving furt .....

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cting Revenue from further effect to the proceedings of penalty imposed under Rule 26, by respectfully following the same, we grant the interim relief to the petitioner upon whom penalties stand imposed under Rule 26 of the Central Excise Rules. 8. All the stay petitions are disposed of in the above manner. (Pronounced in the open Court on ) Sd/- (Archana Wadhwa) Member (Judicial) 9. [Order per : Manmohan Singh, Member (T)]. - I have gone through the stay order recorded by learned Memb .....

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pellants were heard in respect of their individual roles on the issue whether penalties on them under Rule 26 of the Central Excise Rules, 2002 were imposable. Learned Member (Judicial) ordered for stay of proceeding against the M/s. Suraj Medical Agencies and others under Rule 26 of the Rules ibid on the grounds that companies cannot be penalized under the rule as they are not natural persons and are juristic persons only whereas as per the language of the Rule 26 ibid only natural persons can .....

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rder held that prima facie Rule 26 ibid is ultra vires to the Section 11AC of the Central Excise Act, 1944. 13. Calcutta High Court decision in the case of Prompt Casting Pvt. Ltd. is only an interim stay order and does not lay any ratio. Stay was operative only up to 17-12-2012 in terms of para 6 of the High Court order which reads as follows :- 6. The interim order shall remain in force till 17th December, 2012 or until further orders whichever is earlier. I find that the Hon ble Cal .....

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that companies can be penalized under Rule 26. In the Punjab and Haryana High Court judgment in V.K. Enterprises v. CCE - 2011 (266) E.L.T. 436 (P&H), it has also been held that penalty under Rule 26 is imposable. Reference was also made to Supreme Court judgment in Standard Chartered Bank & Others v. Directorate of Enforcement & Others - (2005) 275 ITR 81 = 2006 (197) E.L.T. 18 (S.C.) in the above judgment where it is held that legislative never intended to give immunity from prosec .....

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pellant next submitted that Natraj Plast Industries Ltd. and Tanishq Wires & Conductors Pvt. Ltd. are limited companies incorporated under Companies Act, 1956 and, therefore, no penalty can be imposed on them under Rule 26 of the Central Excise Rules, 2002. It is submitted that the said companies cannot be attributed with requisite mens rea and the requirement of the Rule is that the person should have knowledge or attributed with reason to believe, that the goods are liable for confiscation .....

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s of course, no definition of person in either of these Acts but the definition in Section 2(42) of the General Clauses Act, 1897, or Section 2(3) of the Act of 1868 would be applicable to the said Acts in both of which person has been defined as including any company or association or body of individual, whether incorporated or not. It is of course contended that this definition does not apply to a firm which is not a natural person and has no legal existence, as such Clauses (3), (8) and (37) .....

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foreign Exchange Regulation Act read with Sea Customs Act by a firm, the partners of it who are in-charge of its business or are responsible for the conduct of the same, cannot escape liability, unless it is proved by them that the contravention took place without their knowledge or he exercised all due diligence to prevent such contravention. 10. We may also note that a similar contention was raised before Supreme Court in Standard Chartered Bank and Ors. v. Directorate of Enforcement and .....

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give immunity from prosecution or penalty for grave economic crimes. In such cases it is not possible to impose penalty of imprisonment because the company is a corporate body and not a natural person but fine or cash penalty can be imposed. 17. Hon ble High Court of Punjab & Haryana too in the case of M/s. Vee Kay Enterprises v. C.C.E. reported in 2011 (266) E.L.T. 436 (P & H) had observed that penalty under Rule 26 ibid is imposable on Dealers of Cenvatable goods when only invoic .....

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orts to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. We are, thus, unable to hold that appellant was not liable to pay any penalty. 18. I also note that other decision cited by th .....

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. I also note that Kerala High Court in the case of India Sea Foods (Regd.) - 1984 (16) E.L.T. 243 (Ker.) has held that penalty under Sections 111 and 112(a) of the Customs Act, 1962 is imposable both on partner and the firm. 19. In light of the above, I hold that issue regarding imposition of penalty is no longer res integra and cases relied upon in the draft order of Member (Judicial) are no more good law. It is also noted that Hon ble Delhi High Court judgment in Sunil Mittal case was no .....

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r Rule 26 ibid. 21. The main accused in these proceedings is M/s. Gold Star Pharmaceuticals Pvt Ltd. There are serious allegations against him for clandestinely manufacturing and clearing medicaments - the main drug being G-Norphine. The modus operandi was to manufacture the drugs with repeat batch numbers. The excess production was further cleared clandestinely mainly through M/s. Suraj Medical Agencies. Stay matter against M/s. Gold Star Pharmaceuticals Pvt. Ltd. was earlier decided by th .....

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harmaceuticals Pvt. Ltd. and M/s. Suraj Medical Agencies. While M/s. Gold Star Pharmaceuticals Pvt. Ltd. is the main accused concerned with production and clearance of the drugs without payment of duty M/s. Suraj Medical Agencies was the main conduit for the clearance of the illegally manufactured drugs in the market. Both these concerns belong to the same family. Sh. Ashok Kumar is the Managing Director and Roshan Lal Kwatra, Director of M/s. Gold Star Pharmaceuticals Pvt. Ltd. and Sh. Kashmir .....

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rded in the statutory documents of M/s. Gold Star Pharmaceuticals Pvt. Ltd. Annexures C, D and E to the SCN give details of such excess clearances as G-Norphine injections numbering 10302215 assessable value ₹ 67691782/-; Diazepam numbering 226929 assessable value ₹ 1013988/- and Pentazocine numbering 396239 assessable value ₹ 1188717/-. Statements of the chemists concerned with the production of the medicines in M/s. Gold Star Pharmaceuticals Pvt. Ltd. were recorded which are .....

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ere also examined under Section 14 of the Central Excise Act. All three have stated that the manufacturing was being supervised by all the three applicants Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar. Testimony of Sh. Narinder Kumar, clerk with M/s. Gold Star Pharmaceuticals Pvt. Ltd. has also been relied upon where he states that medicines were being cleared from the factory illegally on the basis of rough bills at the instance of Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and .....

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8377; 2/- per ampoule). The illegally received remunerations were also being put in the bank accounts of the abovenoted three persons Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar and also in the account of Mrs. Richa Kwatra, wife of Sh. Roshan Lal Kwatra. 22. Therefore without going into further details of the case, it is very clear that all the four noticees are directly involved in the illegal manufacturing and clearance of the medicines. In the interest of the Revenue, s .....

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mpany/corporate body etc. 23. In view of the above, I hold that penalties under Rule 26 have been rightly imposed upon the appellants M/s. Suraj Medical Agencies, Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar. Thus the balance of convenience is in the favour of the Revenue for imposition of penalty on these persons. Accordingly I differ with the findings recorded by learned Member (Judicial). 24. In the light of above discussions and findings, I am of the view that to a .....

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) Member (Technical) POINT OF DIFFERENCE OF OPINION Whether in view of the facts of active involvement of M/s. Suraj Medical Agencies, Sh. Roshan Lal Kawatra, Sh. Kashmir Chand and Sh. Ashok Kumar in the clandestine manufacture and clearance of medicaments by M/s. Gold Star Pharmaceuticals Pvt. Ltd., pre-deposit of penalty imposed upon them under Rule 26 of the Central Excise Rules, 2002 is demandable as recorded by the Member (Technical)? OR Whether considering the case laws cited by the ld. Ad .....

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ls Pvt. Ltd., Ferozpur Road, Moga, a manufacturer of medicaments along with interest thereon under Section 11AB of Central Excise Act, 1944 and had also imposed penalty of same amount on them under Section 11AC. Shri Ashok Kumar Kawatra is the Managing Director of M/s. Gold Star Pharmaceuticals Pvt. Ltd. and on him penalty of ₹ 25,00,000/- was imposed under Rule 26 of the Central Excise Rules, 2002. Another Director of M/s. Gold Star Pharmaceuticals is Shri Roshan Lal Kawatra on whom penal .....

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aceuticals Pvt. Ltd. either without payment of duty or on short payment of duty by resorting to undervaluation. Penalty imposed on M/s. Suraj Medical Agencies under Rule 26 of the Central Excise Rules, 2002 is ₹ 10,00,000/-. Shri Kashmir Chand is an employee of M/s. Gold Star Pharmaceuticals Pvt. Ltd. Incharge of production and clearances of medicines and on him penalty of ₹ 10,00,000/- has been imposed under Rule 26 of the Central Excise Rules, 2002. M/s. Gold Star Pharmaceuticals P .....

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harmaceuticals Pvt. Ltd. to deposit an amount of ₹ 1.15 crores within a stipulated period subject to which the pre-deposit of balance amount of duty demand, interest and penalty by M/s. Gold Star Pharmaceuticals Pvt. Ltd. and the requirement of pre-deposit of penalty by the other appellants would stand waived and its recovery stayed. However, M/s. Gold Star Pharmaceuticals Pvt. Ltd. did not deposit the directed amount as a result of which the appeal filed by M/s. Gold Star Pharmaceuticals .....

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osit of penalty following the judgments of the Tribunal in the case of Woodmen Industries v. CCE, Patna reported in 2004 (164) E.L.T. 339 (Tri.-Kol.) and also the Tribunal s judgment in the case of Aditya Steel Industries v. CCE, Hyderabad reported in 1996 (84) E.L.T. 229, wherein it was held that penalty under Rule 26 of the Central Excise Rules, 2002 (corresponding to Rule 209A of the Central Excise Rules, 1944) can be imposed only on the natural persons and not on the companies or firms const .....

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orded by him, took a different view holding that this is not the case for waiver from the requirement of pre-deposit and ordered pre-deposit of 50% of the penalty imposed by each appellant for compliance with the provisions of Section 35F. 25.2 In view of the difference between Member (Judicial) and Member (Technical), following point of difference has been referred to the undersigned for decision :- Whether in view of the facts of active involvement of M/s. Suraj Medical Agencies, Shri Ros .....

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the Hon ble Member (Judicial)? 26. Heard both the sides in respect of the point of difference. 27. Shri K.K. Anand, Advocate, the learned Counsel for the appellant, pleaded that so far as M/s. Suraj Medical Agencies is concerned, it being a partnership firm is not a natural person, that Rule 26 of the Central Excise Rules, 2002 applies only to a natural person and no penalty can be imposed on a company or a firm under this Rule, that in this regard he relies upon the Tribunal s judgme .....

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ble Calcutta High Court in the case of Prompt Castings Pvt. Ltd. (supra) observing that Rule 26 is prima facie in excess of the rule making powers conferred on the Central Government under Central Excise Act, 1944 has stayed the recovery of the penalty imposed under Rule 26 of the Central Excise Rules, 2002, that in view of this, there is no justification for ordering pre-deposit of penalty by M/s. Suraj Medical Agencies and other appellants and it is the order recorded by Member (Judicial) is t .....

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isions of Rule 26 of the Central Excise Rules, 2002, that in this regard he relies upon the Apex Court s judgment in the case of Madhumilan Syntax Ltd. v. Union of India reported in 2007 (210) E.L.T. 484 (S.C.) and also the Tribunal s judgment in the case of Twenty First Century Wire Rods Ltd. v. CCE & Cus., Goa reported in 2010 (250) E.L.T. 94 (Tri.-Mumbai), wherein the Tribunal relying upon the Apex Court s judgment in the case of Madhumilan Syntex Ltd. v. Union of India (supra) has held t .....

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Pharmaceuticals Pvt. Ltd., Shri Kishan Chand is an employee Incharge of production and clearance of M/s. Gold Star Pharmaceuticals Pvt. Ltd. M/s. Suraj Medical Agencies are a trading firm who were receiving the medicament, from M/s. Gold Star Pharmaceuticals Pvt. Ltd. The allegation against M/s. Suraj Medical Agencies is that they were receiving non-duty paid goods or the goods on which duty had been short paid by undervaluation, cleared by M/s. Gold Star Pharmaceuticals Pvt. Ltd. and it is on t .....

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tra and Shri Kishan Chand. However, the main point of dispute to be decided in this case is as to whether under Rule 26 penalty can be imposed on a firm which is not a natural person in view of the Tribunal s judgment in the case of Woodmen Industries v. CCE, Patna (supra) Government s civil appeal against which has been dismissed by the Apex Court and also the interim order of Hon ble Calcutta High Court in the case of Prompt Castings Pvt. Ltd. (supra) wherein Hon ble High Court after observing .....

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duty as determined under sub-section (2) of Section 11A. Rule 26 of the Central Excise Rules which provides for imposition of penalty on any person who acquires possession of, or is in any way concerned with transporting, removing, depositing keeping, concealing, selling or purchasing, or in any other manner dealing with any excisable goods that are liable to confiscation, is prima facie ultra vires of Section 11AC of the Central Excise Act, 1944. It is well settled that no penalty can be levie .....

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he Central Excise Act, 1944 and the short payment/non-payment of duty is due to fraud, wilful misstatement, suppression of fact, etc. on his part. Penalty under Rule 26 of Central Excise Rules, 2002 is imposable on the persons other than the manufacturer, who are involved in acquiring possession of or are in any other manner involved in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner dealing with excisable goods which they knew or had reason .....

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nalty under Rule 26 has been made by the Central Government in exercise of the provisions of Section 37(5) of the Central Excise Act, 1944 which provides that notwithstanding anything contained in sub-section (3), the Central Government may make rules to provide for imposition of penalty on any person who acquires possession of any way in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner dealing with excisable goods which he knew are liable for .....

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Union of India (supra), has in para 38 of the judgment held that penalty under Rule 26 can be imposed even on companies and the word person in this Rule need not be a natural person and would include a juristic person also which can be a firm, a corporate body or even a company. The Apex Court in the case of Madhumilan Syntex Ltd. v. Union of India (supra) had in para 23 of the judgment held that while it is, no doubt, true that a company is not a natural person but is a legal or juristic perso .....

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