TMI Blog2020 (2) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... luded that department do not dispute the classification etc. There cannot be any dispute in this appeal that duty has been short paid in respect of the clearances made by M/s. P.M.L industries. Also the liability to confiscation of the goods which have been cleared on short payment of duty can be disputed. It is settled principle of law that when the two authorities have sitting separately arrived at the same finding of fact the same should normally not be disturbed till the time it can be shown to be perverse. Nothing has been produced to show that findings recorded by both the lower authorities in respect of the present appellant is perverse, hence we are not inclined to disturb the same - there are no merits in submissions that penalty under Rule 26 could not have been imposed upon the appellant, however, the penalty equivalent to the duty evaded on by P.M.L industries on the appellant is too harsh and should be reduced. Holding that penalty under Rule 26 is imposable on appellant, the same is reduced to ₹ 10,00,000/- - appeal allowed in part. - Excise Appeal No. 548 of 2008 - FINAL ORDER NO. 60215 /2020 - Dated:- 20-2-2020 - MR. S.S. GARG, MEMBER (JUDICIAL) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der indicated in para 1, supra by the said order, a penalty of ₹ 53,17,908 has been imposed or the appellant under Rule 26 of Central Excise Rules, 2002. 2.4 Aggrieved by the order in original, both M/s P M L Industries and Shri A. S. Bindra had filed the appeals before the Commissioner (Appeals) which were dismissed by the impugned order referred in para 1, supra. 2.5 Aggrieved by the impugned order, both M/s P M L Industries and Shri A. S. Bindra had filed the appeals before the CESTAT. 2.6 During the pendency of appeals M/s P.M.L industries have gone into liquidation and official liquidator appointed. Despite Notice issued Official Liquidator has not filed any application under Rule 22 of CESTAT Procedure Rules, 1982. Thus, the Appeal No. E/547/2008- EX(DB) filed by M/s P.M.L Industries was dismissed as abetted in terms of Rule 22 of the CESTAT Procedure Rules, 1982. 2.7 The appeal of present appellant was also dismissed along with appeal of M/s P.M.L., however on the application made by him same has been restored. 3.1 We have heard Shri J.M. Sharma, Consultant for the appellant and Shri A.K. Saini, Authorized Representative for the Revenue. 4.1 Arguing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r valuation of the goods by clearing the same through a related person namely Hi-tech Group. The submission of the appellant in respect of Hi-tech group is not sustainable. Appellant before us had full command on both the companies and had direct interest in the business of both the companies which had three common director from the same family. The role played by the Appellant was stated in the statements recorded under Section 14 of Central Excise Act, 1944 of various persons namely Sh R C Bhalla, authorized signatory of Hi-tech, Shri Vijay Kumar, Assistant Manager and Shri Dharmveer, Company Secretary. In view of the various facts recorded by the adjudicating authority in this order the demand of duty with interest and penalty on M/s P M L cannot be disputed. In any case since there is no appeal of M/s P M L Industries under consideration as the same has been dismissed as abated in terms of Rule 22 of CESTAT Procedure Rule, 1982 the same cannot be assailed in this appeal by the present appellant. It is settled law that any goods which are cleared without payment of duty/ short payment of duty are liable for confiscation. Since the appellant as Managing Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alties imposed on the present appellant. In this order, while discussing the role of present appellant adjudicating authority has referred to various statements of various statements of various employees of the company. The relevant paras of the Order in Original are reproduced below: Sh. Vijay Kumar, Assistant manager (Accounts/ authorised signatory of the noticee in his statement tendered on 15.02.2001 under Section 14 of Central Excise Act stated that the noticee and Hitech had common directors namely Dr. A.S. Bindra, Mrs. Kanwarjit Kaur and Col. Bir Singh; these directors were members of the same family; that Col. Bir Singh was the father of Dr. A.S. Bindra and Mrs. Kanwarjit Kaur was wife of Dr. A.S. Bindra; that after the death of Col. Bir Singh his shares were transferred in the name of Dr. A.S. Bindra in respect of Hitech. He further stated that for the policy decisions, the managing Director of the company, Dr. A.S. Bindra was consulted and the work was carried out on his directions in respect of the noticee that the staff of the noticee was extending the clerical and co-ordination help to Hitech; that for extending this help, no consideration, monetary or otherwise w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role in contravention of the above referred provisions of law by clearing their goods to their related buyers by undervaluing the same with an intent to evade payment of Central Excise duty which resulted into short payment of Central Excise duty, he is also liable to penal action under Rule 26 of the Rules. The Adjudicating Authority after discussing the role of Shri A S Bindra held him reliable for penal action under Rule 26 of Central Excise Rules,2002. We further observed that the entire scheme for under valuation was made and opted with the consent/approval of the appellant before us. As his evident from observations made by Commissioner (Appeals) as follows: Further, I observe that on the basis of the investigations caused and statement of various representatives of the companies, it has been proved by the Revenue that both the companies were related as per the definition of related person and have mutuality of interest. Thus M/s PML cleared excisable goods to the related person resorting to under valuation. The only contention put forth by the appellant in their defence is that Hitech Live Stock Co. Ltd and M/s Bindra agro industries Ltd. were not working under a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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