TMI Blog2017 (11) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacture of final goods. Further, I find that for the commission received by M/s. RIL it has been alleged that the same is towards the sale proceeds of the goods cleared clandestinely. Whereas the Revenue has issued a show cause notice to demand service tax on the commissions earned. In that circumstance, penalty on the appellant is not imposable merely on the charge that appellant has failed to satisfactorily explain the contradiction in various statements recorded during investigation, being overall in-charge of M/s. RIL. A specific role of the appellant has not been alleged for the activity of M/s. RIL. In that circumstance, penalty on the appellant is not imposable. Penalty set aside - appeal allowed - decided in favor of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was received by M/s. RIL is to adjust the cash generated by way of clandestine clearances whereas, M/S. RIL has shown income from commission. The statements of various parties, RIL Officials were recorded during the course of investigation, who paid the commission to M/s. RILI including the appellant. The case was booked against M/s. RIL and the appellant for clandestine removal of the goods and to demand duty thereon and to impose penalty on the appellants. The matter was adjudicated, demand of duty of ₹ 2,67,00,348/- was confirmed against M/s. RIL. On the charge of undervaluation, a demand of ₹ 74,24,332/- was also confirmed against M/s. RIL and Penalties were also imposed on both the appellants. Both the appellants, RIL a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. He relied on the case of RA Casting Pvt. Limited Vs. CCE - 2009 (237) ELT 674 (Tri.) which has been confirmed by Allahabad High Court reported as - 2011 (269) ELT 337 (All), which has also been affirmed by the Hon ble Apex Court 2011 (269) ELT A108 (SC). He further submitted that the adjudicating authority has mainly relied upon the certain statements which are not relevant to the appellant's case and the sole statement cannot establish the guilt of the assessee. Therefore, the burden lies on the Revenue which is required to be discharged effectively. To support his contention he relied on the decision in the case of Vikram Cement Pvt Limited Vs. CCE - 2012 (286) ELT 615 (Tri) which has been confirmed by Allahabad Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e against the appellant and the penalty is not imposable. 4. On the other hand Id AR reiterated the findings in the impugned orders. 5. Heard the parties and considered the submissions. I find that the appeal of M/s. RIL has been dismissed for non-compliance with the provisions of Section 35F of Central Excise Act, 1944. Therefore, the merits and observations made hereunder shall not have any bearing with regard to the merits of the case of M/s. RIL. It is made clear that the observations made hereunder are only for the appellant before me i.e. Shri Anil Rathi and has no relevance with regards to the case of M/s. RIL. 6. During the course of investigation statement of Shri Anil Rathi was recorded which is reproduced below:- 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was alleged that the excess quantity of Ferro Chrome has been used to clandestinely manufacture the goods and the same has been removed without payment of duty. It has not been brought on record by the Revenue that from where the other inputs were procured and used in the manufacture of final goods. Further, I find that for the commission received by M/s. RIL it has been alleged that the same is towards the sale proceeds of the goods cleared clandestinely. Whereas the Revenue has issued a show cause notice to demand service tax on the commissions earned. In that circumstance, penalty on the appellant is not imposable merely on the charge that appellant has failed to satisfactorily explain the contradiction in various statements recorded d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty can be imposed under Rule 209A of the Central Excise Rules, 1944, the Department has to prove that the person concerned was dealing with the goods with the knowledge that the goods are liable to confiscation. In absence of any such evidence brought on record, no penalty can be imposed on him. The Tribunal in the case of Autolite (India) Ltd. (supra), has set aside the penalty imposed on the Director after observing that there is no finding that he was looking after the day-to-day affairs of the company or dealing with the goods, in question. l, therefore, set aside the penalty imposed on the appellant and allow his appeal. Admittedly, in this case, a specific role of the appellant has not been alleged for the activity of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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