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TMI Blog2025 (5) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti-Evasion (DGAE) that the said BTMPL were indulging in evasion of excise duty payable by undervaluation and also by clandestine clearances of Polyester Texturised Yarn (PTY) by maintaining two sets of records, one for the purpose of payment of central excise duty at grossly undervalued rates, and the other showing collection of actual sale proceeds at higher rates in respect of the said goods. The said intelligence also indicated that BTMPL had been clearing their final product PTY at very low value, by showing fictitious factory gate sales; through actually transferring the goods to the appellant's Godown at Bhiwandi for actual sales at higher values. In this regard the Godown premises of the appellant were searched on 07/07/1999, and certain records were seized along with the PTY/goods that were available at the warehouse totally amounting to 13925.450 Kgs. valued at Rs.11,83,663/-. Detailed investigation was conducted by the DGAE and statements were recorded from various persons concerned with the alleged evasion of duty. On completion of the investigation, Show Cause Notice (SCN) reference No. DGAE/BZU/203/ 12(4)93/99 dated 28.09.2000 was issued to BTMPL for demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1944 on BTMPL, also imposed personal penalty on the Managing Director of BTMPL for Rs.25,00,000/- and on the appellant for Rs.12,50,000/- under Rule 209A of the Central Excise Rules, 1944. Feeling aggrieved with the impugned order imposing the above penalty, the appellant has filed this appeal before the Tribunal. 3.1 Learned Chartered Accountant submitted that the appellant is in the business of warehousing and storage service starting from the year 1988. The appellant provided warehousing services to BTMPL from March 1998 onwards. During investigation, the appellant had stated that they were only providing storage and warehousing services of the goods supplied to them and such warehoused goods were released upon production of delivery order, duly signed by authorised signatory of BTMPL, as per the arrangement agreed vide letter dated 20.02.2008. Similarly, they were providing such warehousing and storage services for nine different manufacturers/traders. The appellant was only performing the services of storage and warehousing and in this regard they were maintaining the records of all inward receipts and outward delivery of the goods. As the manufacturers or traders generall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be set aside. 3.3 Learned Chartered Accountant also stated that the department was well aware of the fact that there is no evidence of any forgery or fake nature of the documents to state that the appellant had an intent abetting with BTMPL for evading payment of Central Excise duty. Therefore, he pleaded that imposition of penalty on the appellant is incorrect and in this regard he relied upon the decision of the Tribunal the case of R.C. Jain Vs. Commissioner of Central Excise & Service Tax, Surat - 2016 (334) E.L.T. 115 (Tri.- Ahmd.). 3.4 In view of the above, it was prayed that there is no case for imposition of penalty on the appellant in this case and accordingly learned Chartered Accountant requested for allowing the appeal filed by them. 4. On the other hand, learned Authorised Representative for Revenue reiterated the findings recorded by the Commissioner in the impugned order, and stated that since the manufacturer BTMPL have issued the central excise invoices in the name of the appellant, from where the goods were actually delivered to their customers, the role of the appellant in abetting with BTMPL has been proved and therefore penalty has been rightly imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse- (a) removes any excisable goods in contravention of any of the provisions of these rules; or (b) does not account for any excisable goods manufactured, produced or stored by him; or..... (d) contravenes any of the provisions of these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the manufacturer, producer or licensee of the warehouse, as the case may be, shall be liable to penalty not exceeding three times the value of the excisable goods in respect of which any contravention of the nature referred to in clause (a).... (d) has been committed, or five thousand rupees, whichever is greater..... Rule 209. Confiscation and penalty.- (1) Notwithstanding anything contained in any other provision of these rules save and except rule 173Q, if any manufacturer, producer or licensee of a warehouse,- (a) removes, any excisable goods in contravention of any of the provisions of these rules; or ..... (d) contravenes any of the provisions of these rules with intent to evade payment of duty, then all such goods shall be liable to confiscation and the manufacturer, producer or licensee of the warehouse, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of yarn to be delivered however, it is on record that quality is of yarn in cartons never shown in the invoices. Without the knowledge of quality of yarn, the goods could never be delivered to purchasers. Therefore, noticee no.3 has actively convened (connived) with noticee no.1, in evasion of excise duty. This act on the part of noticee no.3 has rendered them liable for penalty under Rule 209A of the Central Excise Rules, 1944. 78 The demands of the evaded payable duty of excise, aggregating Rs.2,53,69,110/- (Rupees two crores fifty three lakhs sixty nine thousand one hundred ten only), therefore, would become liable to be determined and is determined or along with the payable accrued interest under Section 11A(2) and Section 11AB of the Central Excise Act, 1944." On perusal of the above findings in the impugned order, along with various documents shown as evidences, it is noticed that in an illustrative case shown in the impugned order that the actual amount collected for the sale of the impugned goods as per Delivery Order No.927 dated 21.10.1997 was shown as Rs.100/ per kg., whereas the corresponding central excise invoice No.272 dated 11.10.1997 to such DO, indicate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts. For the storage of the goods in the appellant's warehouse, they collected rental charges as was mutually agreed by them. From the above facts, it transpires that the appellant had provided the services of warehousing or storing the goods/PTY, which were manufactured by BTMPL and in which, there was clear case of undervaluation and the mismatch of complete details of address etc. with respect to the consignee/end customer. However, in the letter dated 20.02.1998, and 06.04.1998, BTMPL had instructed the appellant that without the valid signature of the authorised persons viz., Mr. Omprakash Agarwal, Mr. Shushil Kumar Nahata and Mr. Sashi Kumar Pillai, who specimen signatures were authorised by the director of BTMPL, no material should be issued to the party and as per agreement entered into between them the bilty charges will be Rs.25 per carton. Further, it is also explained by the learned Chartered Accountant that BTMPL received the goods from BTMPL in bags or cartons, on which numbers are written by BTMPL. Whenever any Delivery Order was issued by BTMPL, they used to give the reference numbers of the bags/carton which should be delivered to their customers. Since, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was aware for forgery or fake nature. The relevant paragraph of the said order is extracted and given below: "6. With respect to remaining appeals, we have gone through the records of the present appeals and the Order No. A/1491 to 1492/WZB/AHD/2012, dated 10-10-2012 passed by this Bench in the case of Shri T.S. Makkar v. CCE, Surat [2014 (312) E.L.T. 427 (Tri.- Ahmd.). On a comparison of the facts of the present proceedings and the facts involved in the case before this Bench while passing order, dated 10-10-2012, we find that the same are more or less similar. It is thus held that as the appellant has not dealt with or transported the goods in any manner. Nor it was established that appellant was aware of the forged/fake nature of license, then no penalties are invokable under Section 112(b) of the Customs Act, 1962 and or Rule 209A of the erstwhile Central Excise Rules. Accordingly, we allow the appeals filed by the appellants holding that the same are covered as per ratio laid in our Order No. A/1491 to 1492/WZB/AHD/2012, dated 10-10-2012 passed in the case of Shri T.S. Makkar v. CCE, Surat. Appeals filed by these appellants are allowed." 9.2 I further find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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