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TMI Blog2018 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2.12.1996 binding themselves to fulfil the conditions of the relevant notifications for setting up a 100% EOU with surety at Khopoli. They executed B-17 General Bond for Rs. 15 crores with the surety of M/s Manasvi Investment Pvt. Ltd. (hereinafter referred to as M/s MIPL) having the registered office at Bandra West Mumbai. During the course of a detailed investigation, it was found that the assessee had clandestinely cleared capital goods, components, raw materials, semi-finished goods, finished goods without proper permission from SEEPZ, without preparing invoices and without payment of proper Customs/Central excise duty in contravention of the conditions laid down in Notification No. 53/97-Cus. dated 3.6.1997 read with Notification No. 1/95 - CE, and hence they were liable to recovery of customs and central excise duty and also liable for penal action. The Department therefore issued SCN dated 06/10/2004 answerable to the ADC, Raigad for denial of exemption under Notification No. 53/97-Cus., recovery of customs duty of Rs. 12,48,030/- under Section 28 of the Customs Act, with further recovery of interest and imposition of penalty, for denial of exemption under Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recovered. Further penalty of Rs. 1,24,43,931/- was imposed under Section 11 AC of the Central Excise Act read with Rule 26 of CER 2002. Further, penalty of Rs. 9,96,999/- was imposed under Section 11AC of the Central Excise Act, goods under seizure were confiscated under Section 111(o) of the Customs Act with an option to redeem the same on payment of fine of Rs. 25 lakhs. A penalty of Rs. 25 lakhs was imposed on the respondent Shri Gopi Kishan Sharma under Rule 26 of the Central Excise Rules 2002 read with Section 112 of the Customs Act. Further, the confirmed dues up to Rs. 15 crores were ordered to be recovered by forfeiture of surety given by MIPL as per condition of the bond. 5. On appeal by the assessee company and Shri Gopi K Sharma separately, the CESTAT vide Order No. A/2031-2032/WZB/06 C- 1(EB), and U/1578/WZB/06-C-I(EB) dated 27/09/2006 remanded the case back to the jurisdictional Commissioner for decision on merits after act extending a reasonable opportunity to be heard. 6. On re-adjudicating the case, the Commissioner, Central Excise, Raigad has denied the benefit of exemption under Notification No. 53/97 - Cus dated 30.6.97 confirmed the demand of customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he findings of the Commissioner in this regard absolving him of all responsibility appears to be misplaced and untenable. Accordingly, ld. Counsel for Revenue states that penalty should have Been imposed on Shri G.K. Sharma taking into consideration the facts and grounds as mentioned in the Show Cause Notice. 8. The ld. Counsel Shri R.V. Desai appearing for the respondent Mr G.K. Sharma draws my attention to the findings recorded by the ld. Commissioner in the impugned order which is as follows: - "26. The personal hearing was also granted to other noticee i.e. Shri Gopi Kishan Sharma and M/s MIPL for appearing before the undersigned on 11th, 12th, 13th August, 2008. Shri Gopi Kishan Sharma appeared for the hearing on 12.8.2008, however, the hearing was adjourned to 25.8.2008. On 25.8.2008, S/Shri G.K. Sharma, the then Vice President of M/s RSIL and S.S. Srivastava, Advocate, appeared before the undersigned and submitted the following: "he was looking after the finance and he had played no role in the consignment imported by M/s RSIL in contravention of Customs Act, 1962/Central Excise Act, 1944 and that before issuance of show cause notice he left the job of M/s RSIL. In his st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment through his reply dated 18.11.04. he was not qualified nor did he possessed any knowledge, training or experience of any of the technicalities of production, process, reactions or any technical aspects of the plant, processes, machinery, environmental concerns, disposal, sale, marketability or usages of RSIL products which is one of its own kind and a speciality chemical plant. He did not hold any professional and technical qualification nor any experience, to understand intricacies and technicalities of the said product process or even identify the raw material. He never understood the parameters or technicality of the processes or end products and was never supposed to do so as per his terms of employment. He had no role to play in purchase, import of raw material, machinery nor sale of end products in any form nor involved with any excise, procedure or formality. He was never an authorised signatory or the responsible person in any correspondence with the department including the Application for Registration. He was only an employee of M/s RSIL and had no direct or indirect interest in it, as he was neither shareholder nor an investor in it at any point of time. The Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation. The relevant judgements are stated as under: (a) M/s B. Lakshmichand Vs. GOI [1983 (12) ELT 322 (Mad.)] "Proceedings should not be allowed to be prosecuted on vague and camouflaged hypothesis. Charges against the accused should be clear and not ambiguous" (b) M/s B.N. Rajmohan Vs. CC Trichy [2002 (148) ELT 919 (Tri.-Chennai) "Penalty - Customs House Agent- No specific allegations of any offence brought out in show cause notice". (c) M/s Dass Photo Electronics Vs. CC Delhi -[1987 (30) ELT 988 (Tribunal)] "Penalty - abatement of doing or omission to do an act renders goods liable for confiscation on the part of the appellant. If the show cause notice does not allege any abetment of offence imposition of penalty on the ground of abetment invalid." (d) M/s Hindustan Cargo Ltd. Vs. CCE Chennai [2007 (220) ELT 349 (Tri.-Chennai)] "Penalty under Section 114A of Customs Act 1962- Not sustainable when show cause notice not alleged any wilful mis-statement or suppression of facts." (e) M/s Gowtami Textile Indus & Sales Corn. Vs. CCE Vizag [2007 (207) ELT 694 (Tri.-Bang.)] "Penalty - intention to evade duty and suppression not brought out in show cause notice - Dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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