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2016 (7) TMI 722 - JHARKHAND HIGH COURT

2016 (7) TMI 722 - JHARKHAND HIGH COURT - 2016 (341) E.L.T. 574 (Jhar.) - Levy of penalty upon the appellant under Rule 173Q of the Central Excise Rules, 1944 for clandestine removal of the goods - Held that:- The removal of excisable goods were substantial looking to the further annexures annexed with the show cause notice issued by the respondent-Department and also looking to the Order-in-Original passed by the Commissioner of Central Excise in his order dated 17th October, 2005. Sizable amou .....

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kh per head of penalty is absolutely just and proper, looking to the nature of clandestine removal of the goods without payment of the duty. There is no substance in these Tax Appeals and, hence, the same are, hereby, dismissed. - Tax Appeal No. 1 of 2008 With Tax Appeal No. 2 of 2008 With Tax Appeal No. 3 of 2008 With Tax Appeal No. 4 of 2008 - Dated:- 10-5-2016 - MR. D. N. PATEL AND MR. ANANDA SEN, JJ. For The Appellant : Ms. Amrita Sinha, Advocate For The Respondent : Mr. Ratnesh Kumar, Advoc .....

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ellant under Rule 173Q of the Central Excise Rules, 1944 for clandestine removal of the goods, the matter has been remanded for refixing the amount of penalty upon the company, but, so far as removal of the goods through seven gate passes are concerned, it is admitted fact that these goods were removed without payment of the duty and it is also admitted fact that the goods which were removed, were excisable goods. Nonetheless, in the High Court, learned counsel appearing for the appellant has ar .....

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the ready reference, paragraphs 10.5 and 10.6 of the order passed by the CESTAT, Kolkata in Excise Appeal Nos. EDM3640 of 2006 dated 30thth May, 2007 read as under: 10.5. Removal of goods through 7 (seven) gate passes under Annexure-B to SCN for delivery to M/s. Manipur Conductors, Imphal was not proved to be removal of goods on payment of duty on the date of removal, leading any evidence even before this forum and such removal having been found without payment of duty are held to suffer duty li .....

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n of duty as well as penalty. So far as the duty imposed upon the aforesaid clandestine removal of the goods is concerned, the same was confirmed and so far as penalty imposed upon the company is concerned, the matter was remanded by the CESTAT. There is also penalty, imposed upon the four directors of the company, as stated in paragraph no. 10.9 of the aforesaid order passed by the CESTAT, Kolkata. The penalty of ₹ 2 Lakhs each was levied upon the directors of the company, namely, Mr. G.P .....

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ns are proprietors and Mr. Kali Kant Jha was a manager. 3.Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that no substantial question of law is involved in this Tax Appeal. The argument canvassed by the learned counsel for the appellant is based upon facts. It is vehemently submitted by learned counsel for the appellant that the goods, which were allegedly removed without payment, were not excisable at all as they are semi fini .....

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ctober, 2005. 4. It is also contended by the learned counsel for the appellant that out of the solid aluminium, wires are being drawn by the appellant and it is semi-finished product and for further finishing, it was sent to M/s Manipur Conductors, Imphal which is a sister concern of the appellant and, hence, it is not excisable. This contention is also not accepted by this Court mainly for the reason that drawing of wires out of solid aluminium also tantamounts to manufacturing. Upon the naked .....

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pted by this Court. The so-called aluminium wire is a raw material for another manufacturing which is also going to do value addition upon the aluminium wire. 5. Learned counsel for the appellant has also pointed out that under Rule 56-B of the Central Excise Rules, 1944, the excise duty is not leviable upon semi-finished goods. This contention is also not accepted by this Court, looking to the fact of the present case. In fact, as per Rule 56-B of the Central Excise Rules, there is need of the .....

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erwise, mainly it is for consumption type of manufacturing. Suffice it to say for disposal of this Tax Appeal, excisable goods were manufactured and were removed by the appellant without payment of the duty, as stated hereinabove and these all are admitted facts, looking to the Order-in-Original as well as the order passed by the CESTAT, Kolkata. No substantial question of law has been raised in this Tax Appeal and, hence, the same is, hereby, dismissed. Tax Appeal Nos. 2 of 2008, 3 of 2008 and .....

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esaid circumstances of confirmation of demand partly by this Order. Such a preventive measure to deter recurrence is rational. We order accordingly." In view of the aforesaid order passed by the CESTAT, Kolkata for clandestine removal of the goods without payment of the duty, as per paragraph nos. 10.5 and 10.6 of the order passed by the CESTAT, Kolkata penalty has been imposed upon all the aforesaid three appellants i.e. ₹ 2 Lakh per appellant. Being aggrieved by the order of penalty .....

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