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TMI Blog2003 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... re, proposed to demand the alleged short-levy and imposition of penalties. This notice was adjudicated by the Commissioner of Central Excise, Delhi in May, 1998, confirming a duty demand of over Rs. 98 lakhs, confiscating the seized goods and imposing penalties of Rs. 10 lakhs on M/s. Vallabh Alloys Ltd., Rs. 5 lakhs on Shri Padam Jain, Rs. 2 lakhs on Shri Sandeep Jain and Rs. 5 lakhs on Shri B.K. Jain. The appellants and Revenue both filed appeals against this order before this Tribunal. While the present appellants challenged the duty demand, penalties and confiscation; the Revenue challenged the finding that provisions of Section 11AC and Section 11AB which came into force from 28-9-1996 cannot be invoked retrospectively. The Tribunal allowed both the appeals by way of remand vide Final Order No. A/1130/99-NB(DB), dated 6-12-1999 and Final Order Nos. A/330-333/2000-NB(DB), dated 7-4-2000. Order-in-Original dated 27-12-2000, which is the subject-matter of the present appeals was passed by the Commissioner pursuant to these orders of remand. 2.In the present order, the Commissioner has confirmed a duty demand of about Rs. 1.28 crore and imposed an equal amount of penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer of different skills, on 21-8-97 their factory was found to be in full production, Shri Padam Jain, partner of the firm, Sandeep Jain, Manager and Shri B.K. Jain had admitted these facts in their statements, purchase of large quantities of LDO for running the machinery in addition to electricity bills raised by DESU and other materials. It is further pointed out that the case of the Revenue is sustainable even without the statements of Chunchun and Subhash Yadav and that Revenue could not be expected to produce these persons for cross-examination as they were the employees of M/s. Vallabh Alloys and thus under their control. 6.The learned SDR has pointed out that the appellant had raised these contentions before the adjudicating authority and that authority had duly considered and rejected them. It has been emphasized that the recovery of several tons of non-accounted goods on the date of visit by the officers, engagement of 40 employees on that day on production, and the statements of Shri Padam Jain, Sandeep Jain, Manager and Shri B.K. Jain gave lie to the appellant's contentions and defence that there was no clandestine manufacture and production. Learned SDR also emphasized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate duty, and not whether they were statutorily required to keep any account in a particular manner. Similarly, on the day of excise visit the appellant was found employing 34 workers according to the Panchnama. Shri Sandeep Jain, Manager of M/s. Vallabh Alloys confirmed this. Shri Padam Jain, partner of M/s. Vallabh Alloys also admitted to employing 34 workers in his statement dated 9-9-97. The appellant's explanation is that all these persons were not workers but included the relatives of the workers who came to visit workers. The muster roll and wage register kept by the appellant shows the employment of 18 workers; but these records apparently don't list all. A glaring example is the omission of Chunchun whose statement is a matter of controversy. He was found working on the day of inspection and the appellant has no case that Shri Chunchun was not an employee. The appellant's complaint is only about reliability of his statement with regard to quantity of production, etc. Thus, the fact remains established that the appellant's muster roll is not reliable and excludes a part of the employees. 9.The appellant's own explanation on the various aspects of the case lack credibility. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , half seals were found fictitious and rivets clamps were found tampered. The connected load was found to the extent of 230.456 KW (IP) and 9.9 KW (IL) against the sanctioned load of 7.5 KW. It is further stated that in the report that a PVC cable size of 4.50 mm2 DESU marking was found connected from LV mains from the meter terminals block. On the basis of this report misuse charges, LIP and LPF penalty were also levied and a bill for a sum of Rs. 6,24,08,598.33 was raised. Against this bill, the petitioner has already deposited a sum of Rs. 2 lacs as per the directions given by the ld. Addl. Distt. Judge, Delhi." (Annexures 4 & 5) The submission regarding meter burn is to be seen in this context. Apart from electricity consumption, the appellant had also purchased a large quantity of LDO to run machinery. In these circumstances, the Commissioner was right in holding that the appellant was running his machinery and producing sheets. 11.The Central Excise authorities had recorded statements of S/Shri Padam Jain, Partner and Sandeep Jain, Manager. Both of them admitted that their factory had been working and producing sheets. Their daily installed capacity was to produce 1.5 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisions to Section 11A of the Central Excise Act for demanding the duty. Since the duty evasion is the result of fraud, there could be no doubt that penalty is attracted. Under the impugned order, penalty of about Rs. 1.28 crore has been imposed on M/s. Vallabh Alloys. The penalty imposed in the first adjudication was only Rs. 10 lakhs; we accept the appellant's submission that in the remand proceedings duty and penalty should not have been enhanced despite this Tribunal's order of remand in Revenue's appeal and reduce the penalty to Rs. 10 lakhs. However, we make it clear that the appellant shall be liable to pay interest on the duty amount arising with effect from 28-9-96, the day on which Section 11AB came into effect. 14.Appeal Nos. E/473 to 475/2001 of S/Shri B.K. Jain, Padam Jain and Sandeep Jain are directed against the imposition of separate penalties on them. Penalties have been imposed on these appellants under Rule 209A of the Central Excise Rules. That rule relates to possession, transport, buying, selling, etc., of offending goods. In the present case the persons concerned are involved as manufacturer of the goods. We feel that separate penalties on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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