TMI Blog2017 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... of responsible person of the main appellant corroborated the case of the Revenue. The unaccounted clearance is also evidenced by private document corroborated by the statement of the Director of the main appellant. Admittedly, the main appellant did make clearances of cement which were not entered into in the RG-I register. The reasons recorded by the original authority are based on material as well as oral evidences gathered during investigation. The appellant’s present appeal cannot bring in any categorical contrary evidence to persuade us to interfere with the said impugned order - there is no merit in the appeal fined by the appellant and two of its Directors against confirmation of demand and imposition of penalties - penalties imposed on the paid employees namely Sh. Ram Kishor, Authorised Signatory and Sh. Bhawani Singh Sekhawat, Munim/ Supervisor of the main appellant are not justifiable. They acted as per the direction of the Directors, as paid employees. They did not gain personally in these transactions - penalty u/r 26 of the CER, 2002 on them is not justifiable. Regarding penalties imposed on M/s Kamdhenu Cement and Sh. Satish Kumar Kabu, Director of M/s Kamdhenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant as well as various other persons to demand and recover Central Excise duty due to wrong availment of Notification No.4/2006 as well as unaccounted clearance of branded cement. Penalties were also proposed to be imposed on various noticees. The original authority adjudicated the case. He confirmed a total Central Excise duty liability of ₹ 78,47,657/- on the main appellant. Equal amount of penalty under Section 11AC of Central Excise Act, 1944 was also imposed. Penalties of ₹ 15 lakhs (Sh. Brahma Dutt Modi, Director of main appellant) ₹ 5 lakhs (Rajesh Modi, Director of main appellant) ₹ 15,000/- each (Sh. Ram Kishor, Authorised Signatory and Sh. Bhawani Singh Sekhawat, Munim of the main appellant), ₹ 5 lakhs on (M/s Kamdhenu, brand owner) and ₹ 2 lakhs (Sh. Satish Kumar Kabu, Director of M/s Kamdhenu Cement Limited) were also imposed under Rule 26 of Central Excise Rules, 2002. 2. Ld. Counsel appearing on behalf of the main appellant and four other persons (Director and employees of the main appellant) submitted that the appellants were not liable to pay differential duty as confirmed in the impugned order. There is no contract bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Ld. AR for the Revenue reiterated the findings of the original authority. He submitted that the main appellant never maintained any separate detailed accounts regarding manufacture of cement with Kamdhenu brand and in their own brand. There is no evidence to support that they did manufacture cement in their own brand. Invoices clearly bear the brand name Kamdhenu . During the course of verification the officers found large quantity of stock of packing box with Kamdhenu brand. The original authority has examined all the evidences before arriving at the decision. 5. We have heard both the sides and perused appeal records. 6. The point of dispute is mainly with reference to eligibility of the main appellant for benefit of Notification No.4/2006 dated 01.02.2006. The said notification allowed concessional rate of duty for cement cleared by the appellant. One of the conditions to be fulfilled is that cement manufactured should not be from such clinker which is not manufactured within the factory and cement should not be bearing brand name or trade name (whether registered or not) of another person. The Revenue claimed that the appellant manufactured and cleared cement with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have contended that their agreement for use of brand name Kamdhenu with M/s Kamdhenu Ispat Ltd. was effective during 1.12.2006 to 30.06.2007 and agreement with Kamdhenu Cement Ltd. (new entity) was effective during 1.7.2007 to 31.12.2007 and the same was terminated w.e.f. 1.1.2008. It is further contended by them that during the period 1.10.2006 to 30.09.2008 they had manufactured and cleared quantity of 36172 MT with outside clinker and under brand name of Kamdhenu on which duty was paid at full rate without availing concession under Notification No.4/2006-CE dated 1.3.2006. Further a quantity of 46928 MT cement was manufactured out of own clinker and cleared under brand name of Jai Kisan Super Gold at concessional rate of duty. While giving details of the purchase of HDPE bags an attempt has been made to claim that only 36172 MT of cement was manufactured from outside clinker and cleared under brand name of Kamdhenu therefore thee was no short payment. It was further stressed by them that as per the understanding with Kamdhenu Ispat Ltd and M/s Kamdhenu Cement Ltd. their brand name could be used only on the cement manufactured out of the clinker taken from big mills in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 4.9.2008 i.e. the date of visit of Central Excise officers to their factory. The contention of the assessee that ..... pre printed KAMDHENU brand was used in cases where cement was of other than KAMDHENU brand is devoid of merits because the buyer would not accept the quality which is different from the quality borne on the invoice. The invoices undoubtedly imply that assessee during their transaction were specific about the brand of the cement cleared under the invoice. The sale invoices conspicuously mentioned the KAMDHENU brand name. It can be no body s case that the brand name was written on these documents every time without any purpose or meaning. Thus the circumstances and facts of the case support the clear cut finding that the quantity of cement cleared during the relevant period was of KAMDHENU brand. 18. As regards contention of the assessee that their agreement with brand owner terminated from 1.1.2008 it does not find support from the other available evidence in the form of letter dated 23.2.2008 and statement dated 29.2.2008 .... Brahma Dutt Modi, Director of the assessee and letter dated 2.4.2008 of M/s Kamdhenu Cement Ltd. addressed to jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate note book was recovered from their factory premises and entries therein were related to clearance in their unit. Sh. Brahm Datt Modi, Director is not an ordinary worker but a Director of the Company. Being Director of the unit he is prejumed to be well-informed and it cannot be accepted that he was under any pressure while accepting the contents of the note book. There is plethora of decisions on the validity of notebook evidence . The said register was recovered from the premises of the assessee and contained clearance details. There can be no reason for any one to scribble entries in the said register hypothetically and keep in the premises. Thus the said register has reliability. However in the instant case I am not relying on said private notebook entries alone. The Director of the company in his voluntary statement admitted that the said register contained clearance details some of which were not recorded in the RG-1 register. Thus said statement is not a mere confession without basis. The statement corroborates believable and admissible evidence in the form of a private note book recovered during search. In the wake of such high quality evidence and in view of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the submissions made by the appellant, we are of the considered view that they have failed to establish such fact categorically. The reasons recorded by the original authority are based on material as well as oral evidences gathered during investigation. The appellant s present appeal cannot bring in any categorical contrary evidence to persuade us to interfere with the said impugned order. Accordingly, we find no merit in the appeal fined by the appellant and two of its Directors against confirmation of demand and imposition of penalties. However, we find penalties imposed on the paid employees namely Sh. Ram Kishor, Authorised Signatory and Sh. Bhawani Singh Sekhawat, Munim/ Supervisor of the main appellant are not justifiable. They acted as per the direction of the Directors, as paid employees. They did not gain personally in these transactions. We find that imposing penalty under Rule 26 of the Central Excise Rules, 2002 on them is not justifiable. Accordingly, we set aside the penalties imposed on these two persons and allow their appeals. 9. Regarding penalties imposed on M/s Kamdhenu Cement and Sh. Satish Kumar Kabu, Director of M/s Kamdhenu Cement, we note that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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