TMI Blog2008 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a company known as M/s. Indian Aluminium Company Limited (in short hereinafter referred to as "INDAL") at Chennai. Yet another company known as M/s. Shree Meenatchi Aluminium Extrusions Limited, Madurai (in short hereinafter referred to as "smalex") was engaged in the manufacture of Aluminium Extrusions at Vellaripatti in Madurai District. 3. According to the allegations in the complaint, INDAL is the real manufacturer of Aluminium extrusions in terms of Section 2(f) of Central Excise Act, 1944 and by suppressing the said fact, INDAL has engaged SMALEX by means of a Memorandum of understanding for getting their goods manufactured on job work basis and cleared the same without payment of appropriate duty on the actual value as per Section 4 of the Central Excise Act read with Central Excise (Valuation) Rules, 1975. The Central Excise officers verified the documents and relevant records on 1-10-1996, during which several documents including the Memorandum of understanding were recovered. On perusal of the invoices and the documents, it came to light that on the raw materials supplied by INDAL, on job work basis SMALEX manufactured Aluminium extrusions and delivered the finishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were manufactured on account of A3, A3 is the real manufacturer of the above said goods in terms of Section 2(f) of Central Excise Act, 1944. A3 had never disclosed the existance of Memorandum of Understanding between A1 and A3 to the Central Excise Department and evaded payment of Central Excise duty to the tune of Rs. 38,22,550/- during 1-4-1994 to 30-9-1996. The said failure in compliance with the provision of Central Excise Law to the extent was intentional on the part of A-1 to A-4 and the Central Government was deprived of legitimate revenue to the tune of Rs. 38,32,550/- during the said period and thereby A-1 to A-4 have committed offences covered under Section 9(1)(a), 9(1)(b), 9(1)(bb) and 9(1)(c) of the Central Excise Act 1944 read with Rules 9(1), 52A, 173G, 173F, 174 and 226 of CER, 1944. Accordingly, A1 to A4 are punishable under section 9(1)(a)(i), 9(1)(b)(i), 9(1)(bb)(i) and 9(1)(c)(i) of Central Excise Act 1944, read with Section 9AA." Based on the above materials collected during verification and on the basis of the statements recorded from various persons, including the petitioner, the respondent laid the private complaint before the learned Additional Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Gold (Control) Appellate Tribunal, South Zonal Bench at Madras. The Bench, by order dated 14-1-1999 set aside the order of the Commissioner and remanded the matter back to the Commissioner for fresh disposal. On such reconsideration, the Commissioner, by order dated 29-1-2002 has passed the following order :- "35. In view of my foregoing findings, it is ordered as under :- (i) I hereby hold INDAL as the manufacturers of goods. However the proceedings initiated for recovery of differential duty are dropped on grounds of limitation. Consequently the proceedings initiated against INDAL for recovery of interest and for imposition of penalty also abate; (ii) The penal proceedings proposed on SMALEX under erstwhile rule 209A are hereby dropped; (iii) I hereby confirm an amount of Rs. 4,450.00 (Rupees Four Thousand four hundred and fifty only) under Section 11A(2) of the Central Excise Act, 1944 as differential duty on SMALEX towards the goods cleared to buyers under AACL's fnvoices, by invoking the larger period of limitation under the proviso to Section 11A(1). The amount of Rs. 4,450.00 paid under T.R.Challan No. 23/97-98 dated 19-1-1998 is adjusted towards the same after vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 8, then it is an offence. Prima facie, in this case there are allegations that as per the findings of the Commissioner of Central Excise, INDAL was found in possession of excisable goods at the premises of SMALEX in violation of Section 8 of the Act. Thus, there is a prima facie case, making out an offence punishable under Section 9(1)(a) of the Act. Similarly, evasion of payment of any duty payable under this Act is punishable under - Section 9(1)(b) of the Act. As found by the Commissioner in his final order and also from the statement of the petitioner as well as the other persons, there are materials to show that INDAL manufactured goods at the premises of SMALEX, sold away the same to various customers during the relevant period and did not pay the duty in time and thus, there is evasion of payment of duty. Thus, there are strong materials available making out a prima facie case. 11. The next penal provision is Section 9(1)(bb) of the Act. It says that removal of excisable goods in contravention of any of the provisions of the Act or any rules is punishable. In this case, as stated above, there are materials to make out a prima facie case that excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on the ground of limitation. When the Commissioner has so held that INDAL is the manufacturer, it goes without saying that INDAL and the persons in charge of the company are liable to comply with the provisions of the Act. 14. The learned Senior Counsel would rely on an unreported judgment of this court in Crl.O.P.No. 35264 of 2005 dated 13-12-2006 (M/s. Together Textile Mills v. The Deputy Commissioner of Central Excise), wherein a learned Single Judge has quashed the private complaint on the ground that the order levying duty made by the Commissioner was set aside by the Appellate Authority and when the matter is so pending before the Commissioner for adjudication, on remand, private complaint for non-payment of duty is not maintainable. But, in the case on hand, final order has been passed by the Commissioner wherein he has clearly stated that INDAL is the manufacturer. So, the argument advanced by the learned Senior Counsel that the private complaint is liable to be quashed in view of the order passed by the Commissioner cannot be accepted at all. 15. The next ground raised by the learned Senior Counsel is that the Central Board of Excise and Customs, New Delhi by lette ..... X X X X Extracts X X X X X X X X Extracts X X X X
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