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TMI Blog2024 (11) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... et without fulfilling their export obligation arising out of availment of the aforesaid Notifications. Later, in order to show fulfillment of their export obligation, the said E.O.U's obtained Advance Licences/Advance Release Orders through their local agents and manipulated their records to show clearance of excisable goods as if manufactured by them, against such Licences/A.R.O's, so that the said records could be used to show their deemed export by which their export obligation would be shown to have been fulfilled. 1.1 The DRI and DGCEI investigated and confirmed that the said EOU's only falsified their records without manufacture or removal of any excisable goods against the said Licences/ARO's, that clearances were made only on paper against certain Advance Licence Nos./ ARO's against which no goods were moved from their units, that in none of the cases any Advance Licence/ ARO's were submitted to the officers in charge of EOU's. It was also found from that the Advance licences/ ARO's against which only false entries were made in their production and clearance registers only to show fulfillment their export obligation on paper, were in fact fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty in the decision of this Tribunal reported as T.S Makkar Vs. Commissioner of Central Excise, Surat -2014 (312) ELT 427 (Tri.-Ahmd.), wherein on the issue of imposition of penalty on the appellant there were difference of opinion between the Hon'ble Member (T) and the Hon'ble Member (J), due to which the third Member was appointed and he passed the following order:- "25. [Order per : M.V. Ravindran, Member (J)]. - This Difference of Opinion is listed before me as per orders of Hon'ble President for deciding the points of difference arose between the Bench while deciding the Appeal No. E/855/2009. 26. Following Difference of Opinion are indicated:- (i) Whether in the facts and circumstances, it has to be held that Shri T.S. Makkar was aware that the licences were fake, forged or fictitious as held by Member (Technical) or it has to be held that Shri T.S. Makkar was not aware of this fact as held by learned Member (Judicial)? (ii) Whether it can be held that all the evidences relating to Shri R.K. Gupta have not been further investigated by DRI as held by learned Member (Judicial) or whether it has to be held that DRI had made serious efforts to trace him as held by Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the fake, forged or fictitious nature of the licences. His reliance has been mainly on oral statements suggesting that - (i) A heavy premium of 30% was payable coupled with understanding that no supplies would be made and there would be only paper transactions, (ii) The appellant told Shri R.C. Jain that AROs could be used by textile companies particularly EOUs for fulfilling their export obligations and if the suppliers were not genuine AROs could fetch 30 to 35% premium, (iii) The appellant ensured that he got all the documents from the 100% EOUs sent to Shri R.K. Gupta, got them endorsed and returned to the 100% EOU. 30. He also relied on involvement of the appellant and Shri R.C. Jain in a case relating to forgery of shipping bills and DEPB licences detected by DRI, wherein they were arrested and detention orders under COFEPOSA were issued against them. On the other hand, the learned Member (Judicial) observed in para 13 that there was no evidence on record to show that it is the present appellant who had either himself forged the advance licences or has pumped the same into the market. The expressions fake, forged or fictitious - nowhere came on record in the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Gupta was not traced by the DRI can help the appellant in any way. However, it is seen that no serious efforts to trace Shri R.K. Gupta, by taking help of Shri Nitin Rastogi, Shri K.D Sharma. the court records in the Court of District Sessions Judge, Delhi are forthcoming from the records. It therefore appears that no serious efforts were made to locate Shri R.K. Gupta, and I have no hesitation to hold so. 3rd point : Whether in the facts and circumstances of the case it has to be held that the appellant was not aware of misuse of the licences by M/s. Kay Bee Tex Spin Ltd. for showing fictitious export and therefore appellant cannot be held to be aiding and abetting the said 100% EOU as held by learned Member (Judicial) or it has to be held that Shri T.S Makkar was aware that no goods would be cleared but only paper transactions will be made and therefore he could be said to be aiding and abetting duty evasion as held by Member (Technical)? 32. Oral statements of the following persons from M/s Kay Bee Tex Spin Ltd., the 100% EOU unit, have been relied upon - (i) Shri Manoj Omprakash Goyal, Director of the 100% EOU, (ii) Shri Omprakash Ramvilas Agarwal, Director of 100% E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pressed into service for imposing penalty. The following judgments relied by the appellant were also to the same effect. 1. 2004 (165) E.L.T. 206 (Tri.-Del.) Kamdeep Marketing Pvt. Ltd. v. C.C.E., Indore 2. 2004 (178) E.L.T. 578 (Tri.-Chennai) D. Ankineedu Chowdary v. C.C.E., Chennai. 36. I am not persuaded to accept that these precedents would not have a binding effect in the facts of the instant case. These decisions are specific on the very issue in question, and are not where there is a mere passing observation, without there being same or similar issue in question. These precedents are authority for what had been actually decided, deducible from the application of law to the facts and circumstance of case, and not some conclusion based upon facts which may appear to be similar. In absence of any evidence of the involvement of the appellant in dealing with the goods in any manner whatsoever, the ratio of these judgments is squarely applicable in the instant case. I also find that the judgment of Hon'ble Supreme Court in Corporation Bank v. Saraswati Abharanasala reported in 2009 (233) E.L.T. 3 (S.C.) is in a different context and is an authority for adopting purposive c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in Section 112(b) of Customs Act, 1962 are proved against the appellant, imposition of penalty under Section 112(b) also cannot sustain. 40. Therefore, in the facts and circumstances of the case, the appellant is not liable to penalty as held by learned Member (Judicial). Registry is directed to place the file before the Bench for further action. Sd/- (M.V. Ravindran) Member (Judicial) MAJORITY ORDER 41. In view of the majority order, the appeals are allowed by setting aside the penalties imposed on the appellant." In view of the above order, the penalty is not imposable on the appellant. The aforesaid order was also followed in the appellant's own case by this Tribunal vide final order No. A/11619-11620/2023 dated 28.07.2023, whereby the penalty imposed under Rule 209 A of Central Excise Rules, 1944 and under Section 112 (b) of Customs Act, 1962 were set aside. 5. Following the above consistent view taken by the Tribunal, in the present case involving the same set of facts and under the same modus operandi, the appellant is not liable for penalties. Accordingly, aforesaid penalties were set aside and appeals are allowed. ( Pronounced in the open court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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