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TMI Blog2018 (11) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 22,31,260 had been cleared without payment of duty of Rs. 2,23,126 against invoice no. 15, 16 and 17 repeatedly. Between 1st April 1995 and 1st July 1995, goods valued at Rs. 59,17,040 and between October 1994 and March 1995 goods valued at Rs. 1,06,02,960, with duty implication of Rs. 23,18,348, were also similarly removed. The link with M/s Royal Synthetics was the alleged clandestine clearance, between April 1994 in September 1995, of goods valued at Rs. 71,04,000 and, between April 1993 in March 1994, of goods valued at Rs. 47,88,653 thus evading duties to the extent of Rs. 5,15,600 and Rs. 89,433. It is alleged that these goods were received by the appellants despite being aware that these had been clandestinely removed. 3. It is the contention of Learned Authorised Representative that the manufacturer is not in appeal and, thereby, the finding of clandestine removal stands undisputed. According to Learned Counsel for the appellants, the statements relied upon for rendering the findings in the impugned order had been retracted and suffered from the taint of lack of relevancy in the absence of having been subject to scrutiny prescribed in section 9D of Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is applicable and simultaneous penalty is imposable. It is made clear that in all other cases falling under Section 112(a) of the Act simultaneous penalties upon the firm and its partner cannot be imposed. It is made clear that no penalty can be imposed upon the partner ipso facto merely on account of the fact that penalty is being imposed on partnership firm. Question (b). - The decision in Textoplast Industries (supra), arrived at on first principle is the correct view only to the following extent : (a) where the show cause notice makes out a case under Section 112(a) of the Act read with Section 135 of the Act then alone on application of Section 140 of the Act simultaneous penalties are imposable upon the firm and its managing partner; or (b) where the show cause notice makes out an independent case of abetment upon the partner for the act or omission of the partnership firm which has rendered the goods liable for confiscation under Section 111 of the Act. This is on the plain reading of Section 112(a) of the Act, without any reference/reliance to Chapter XVI of the Act. The decision in Jupiter Exports (supra) holding that no separate penalty upon the firm and the partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion reports written in note-books, delivery challans, stock record of tins etc. The documents recovered pertained to production and clearance of tin containers. He also stated that amongst other supervisors, even Awadesh Kumar Saxena, Electronics Engineer looked after the production and clearance of the goods of the factory. The authorized signatory of the appellant Girijesh Kumar Rai, confirmed in his statement recorded on 28-9-1998 that the records shown to him were withdrawn from the factory of the appellant in his presence and that he had put his signatures on the said documents at the time of withdrawal on 1-9-1998. The Electronics Engineer, Shri Awadesh Kumar Saxena in his statement dated 28-9-1998 admitted that the portion of daily production reports note-book pertaining to the appellants was prepared by him and that challans and daily production reports which bear his signatures, were prepared by him and they were of the appellant firm. According to him, the daily production report depicted the number of tin containers produced/ manufactured on a specific day. Whenever, he prepared the daily production report/challan he submitted the original copy to the Managing Director. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rajeev Agarwal and others whose signatures he recognized. The authenticity of the recovered documents was admitted by the partner Yogesh Garg [noticee No. (2)] and noticee No. (6) (Girijesh Rai) who also admitted that the record pertained to unaccounted for production and clearance of the tin containers by the appellant. Any subsequent retraction by Shri Awadesh Kumar Saxena has been rightly held to be an afterthought to protect the noticees. This is not a case where any defence was taken up about less consumption of electricity that would have impelled the Revenue Officers to examine consumption of electricity. When production and removal of excisable goods in a clandestine manner is established by such positive documentary evidence and the oral evidence of the managing partner and the supervisor, it cannot be said that the Commissioner committed any error in holding that the appellant had manufactured and cleared tin containers in a clandestine manner. The quantum of liability which is worked out, has not been disputed before us. We find ourselves in complete agreement with the reasoning and findings of the learned Commissioner in holding that the charge of clandestine remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces relating to his particular role as distinct from M/s Royal Synthetics. Therefore, the imposition of penalty on him under rule 209A of Central Excise Rules, 1944 is not in accordance with the law. 7. The impugned order has rendered elaborate findings on the manner in which M/s Royal Synthetics stood to gain from the handing of goods that had been clandestinely removed from the premises of M/s Universal Polymers and the active collaboration that enabled the disposal of unaccounted production of M/s Universal Polymers. The findings per se are not contributed by Learned Counsel for appellants. On the other hand, it is his contention that the statements, by failing to adhere to the relevancy prescription in section 9D of Central Excise Act, 1944, have been erroneously relied upon. On the other hand, the submission of Learned Authorised Representative that the existence of parallel documents, unchallenged as they are, and the lack of challenge to the determination of clandestine removal by M/s Universal Polymers renders credibility to the statements even in the absence of cross-examination of the persons from whom these were recorded has a certain undeniable acceptability. We are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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