TMI Blog2022 (3) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... erted the consignments of aluminum scrap to Ahmednagar he replied that he did not know. Appellant 1 has admitted to non receipt of the goods in their premises and have reversed the credit. Nothing contrary to establish the receipt of the said goods imported by these two bill of entries have been produced by the appellant with their appeal or during the course of hearing before me, hence there are no reason to differ with the impugned order to the extent it pertains the Appellant 1. Penalty imposed on Appellant 2 - HELD THAT:- There are not much reasoning has been assigned by the said order, to show that Appellant 2 was having mens rea or direct involvement for invocation of Rule 26 - Since the impugned order fails to establish the ingredient of mens rea on the part of the Appellant 2 who was otherwise performing their duties as employee of the company, the penalties imposed on the appellant 2, cannot be upheld. The appeal filed by the Appellant 1 is dismissed - appeal filed by the Appellant 2 is allowed. - Excise Appeal No. 31-32 of 2012 - A/85170-85171/2022 - Dated:- 24-2-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri N.S. Patel, Advocate, for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944; 41.4 I impose penalty of ₹ 3,19,990/- (Rs. three lakhs nineteen thousand nine hundred ninety only) under Section 11AC of the Central Excise Act, 1944 read with Rule 15(2) of the Cenvat Credit Rules, 2004. However, if M/s Sangli Aluminium Extrusion Pvt Ltd. pay the amount of ₹ 3,19,990/- (Rs. three lakhs nineteen thousand nine hundred ninety only) being Cenvat credit disallowed along with interest due and the penalty imposed as above within 30 days of communication of this order, the penalty will be reduced to 25 percent of this amount i.e. to ₹ 79,998/ - (Rs. seventy nine thousand nine hundred ninety eight only). 41.5 I order for confiscation under Rule 15 of Cenvat Credit Rules, 2004 of inputs valued at ₹ 19,60,724/- on which Cenvat credit has been taken wrongly by M/s Sangli Aluminium Extrusion Pvt. Ltd. As the said inputs are not available for confiscation I impose fine in lieu of confiscation of ₹ 3,19,990/- (Rs. three lakh nineteen thousand nine hundred ninety only) under Section 34 of the Central Excise Act, 1941; 41.6 I order for confiscation under Rule 15 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in manufacturing of 'final products'. 2.2 A show cause notice dated 05.04.2010 was issued to the Appellant 1, Appellant 2 and other co-noticees. The show cause notice was adjudicated as per the order in original No SLI/ 209/ Adj/ 2011 dated 23.03.2011 referred in para 1.2, by the jurisdictional Assistant Commissioner. 2.3 Aggrieved Appellants preferred the appeal before the Commissioner (Appeal) which have been disposed as per the impugned order refer in para 1 above. 2.4 Aggrieved appellants have filed these appeals. 3.1 I have heard Shri N S Patel, Advocate for the appellants and Shri N N Prabhudesai, Superintendent, Authorized Representative for the revenue. 3.2 Learned counsel submits that the case of Appellant may be considered on the basis of available records as he has submitted all the documents before the adjudicating authority and Commissioner (Appeal) and has nothing further to add. However with regards to Appellant 2 he definitely would submit that without assigning much role and mens rea to the person who was Director, penalty has been imposed. This penalty needs to be set aside. 3.3 Learned authorized representative, reiterates the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he did not have any such evidence but would produce if available by 12/3/2010. He did not appear thereafter and informed that Appellant 2 would represent them. 4.5 Appellant 2 could not give any independent evidence of receipt of the goods corresponding to the said two B.E., no weighment slip was produced no details such as ledgers for freight payments, CHA and Octroi payments were produce, LRs pertaining to the above consignments were not produced. When he was asked to comment on the admission of the transporter of having diverted the consignments of aluminum scrap to Ahmednagar he replied that he did not know. He claimed that they did not maintain any gate registers for movement of incoming and outgoing materials, they did not maintain any Goods receipt notice for receipt of inputs, that they could not find out details of payments made to transporters and CHA as called for in summons. 4.6 Admitting the non receipt of the goods in their premises Appellant 1 reversed the credit of ₹ 3,19,990/- vide debit entry no.53 dated 29/3/2010. 4.7 Thus Appellant 1 has admitted to non receipt of the goods in their premises and have reversed the credit. Nothing contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the Act or the Rules, then penalty is leviable under the aforesaid provision. 10 . In the instant case, admittedly no excisable goods are confiscated. The offence alleged against these respondents is, they were not diligent in seeing that the cheques issued towards payment of the excise duty were whether encashed or not. Therefore, the said offence does not fall under Rule 26 of the Excise Rules. 4.11 Hon ble Punjab and Haryana High Court has in case of Vee Gee Faucet Pvt Ltd [2015 (329) ELT 76 (P H)] held as follows: 27 . In respect of penalties imposable under Rule 26, again the penalty is payable if a person acquires possession of, or in any manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under the Act. Such provision again makes the mens rea a necessary ingredient for imposition of penalty, as held by the Supreme Court in Pepsi Foods Ltd. case (supra). 28 . In view of the above, we find that the Revenue has not been able to prove the intention to evade the payment of duty or the fact that the assessee knew or has reason to belief that the goods used are liable to be confiscated under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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