TMI Blog2018 (4) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod has been correctly invoked. Penalty u/r 25 and 26 - Held that: - penalty u/r 26 cannot be imposed without bringing on record any evidence indicating that M M had any role attributable for under valuation by LML - when the penalty is not imposable under rule 26 itself, the question of imposing penalty on M M under rule 25 does not arise. Appeal dismissed - decided against Revenue. - E/324/2008, E/399/2008, E/253/2008 - A/30368-30370/2018 - Dated:- 30-1-2018 - Mr. M.V. Ravindran, Member (JUDICIAL) and Mr. Madhu Mohan Damodhar, Member(Technical) Shri Y. Srinivasa Murthy, Superintendent/AR for the Appellant (1) Shri Y. Srinivasa Reddy, Advocate for Appellant (2). Shri G. Prahlad, Advocate for the Appellant (3) Shri Y. Srinivasa Reddy, Advocate for the Respondent (1) Shri S.D. Sharma, Asst. Commissioner/AR for the Respondent. (2) Shri Guna Ranjan, Superintendent/AR for the Respondent (3) ORDER [Order per: M.V. Ravindran] These three appeals are directed against Order-in-Original No: 13/2007-CEX, dt. 30.11.2007 and corrigendum issued to the said Order-in Original. Appeal No. E/253/2008 and E/399/2008 are filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, submits the date wise chart which is reproduced herein below: S. No. Details Date/ period Amount Rs. Page No. 1. Show Cause Notice 23.8.2006 77 2. Period involved 2003 to 2004-05 3. Date of original order where under duty was demanded on Cylinder Blocks 30.11.2007 64,19,124 75 4. Date of Corrigendum Order 7.3.2008 69,33,442 12 5. Duty paid before issue of Notice on Cylinder Blocks 64,88,962 12 6. Interest paid of duty on Cylinder Blocks 7,63,146 19 7. Duty demanded on CNC Machines 12,43,482 - 8. Duty paid on CNC machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority has imposed penalty under rule 25 of Central Excise Rules, 1944. It is also his submission that penalty under rule 25 of Central Excise Rules, 1944 cannot be imposed in these proceedings on the appellant and penalty imposed under the provisions which were not invoked in the show cause notice, is unsustainable in the law settled by following cases: 1. Essar Oil Ltd. Vs. CC Preventive [2015(329)ELT 401 (Tri.-Ahmd.)] 2. Guarniflon India Pvt.Ltd vs.CCE Vapi [2013(293) ELT 703 (Tri.-Ahmd.] 3. Lanco Industries Ltd Vs. CCE, Tirupati [2011(265)ELT 118 (Tri.-Bang.] It is his further submission that the penalties imposed under rule 25 of Central Excise Rules, 1944 are not applicable in this appellant s case as the said rule is invokable in respect of producer, manufacturer, registered person of a Warehouse or registered dealer, whilst the appellant is receiver of goods from LML and the under valuation if any, is done by M/s LML Ltd. is not attributable to them and under valuation was result of improper calculation of dues in respect of the clearances by LML and M M had, time and again, issued circulars to the said LML regarding valuation of components, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions made at length by both sides and perused the records. At the outset, we find that the entire issue against appellant M/s LML is regarding the under-valuation of their own machineries and cylinder blocks cleared by them to M/s M M after undertaking job work. The penalty imposed on M M is also in respect of the said job worked cylinder blocks received by them on which duty liability has been paid albeit on under valuing the goods. 7) We take up the appeal filed by LML and find that the adjudicating authority in para No. 3 set out clearly the issues which has led to incorrect determination of valuation of the goods cleared to M/s M M. They are as under: a. Non-inclusion of the pattern amortization charges in respect of Balanagar Unit. b. Non addition of Sales Tax to the Basic Cost for Medchal Unit. c. Non inclusion of freight charges for Medchal Unit. The following issues are related to the under valuation of the final goods: d. Non-addition of amortization cost of machinery for Medchal Unit. e. Non-addition of cost of free items supplied by M M for Medchal Unit. f. Non-inclusion of the value of supplementary invoices for Medchal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of various reasons. On deeper perusal of the said corrigendum, we find it so. Hence, the corrigendum being in respect of correction of arithmetical calculation and rectify the accounting errors, we find it is correct and the case of LML does not carry any further by challenging the said corrigendum issued. 12. The appellant LML had, as stated by Ld. Counsel, settled the entire issue by discharging the entire duty liability confirmed by the lower authorities and annexing the challans thereof in the appeal memorandum which we find as correct and also notice that appellant had paid the penalty of 25% of the demand of duty confirmed by the adjudicating authority. Since the appellant has paid the entire amount of differential duty, interest and 25% of the amount as penalty, we consider the same asacceptable as per statute. 13. As regards the appeal filed by M M, we find merits in their submissions. On perusal of the Order-in-Original, we find that the adjudicating authority in para No. 9 has stated that this appellant had clear knowledge of under valuation of goods received by them but deliberately chose to ignore the same with intention to evade payment of duty. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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