TMI Blog2003 (9) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... . E/508/02 is filed by M/s. Woodmen Industries against the order-in-original No. 48-MP/Commr/2002, dated 30-3-2002 whereby the Commissioner has confirmed a duty demand of Rs. 23,97,676.00 on the appellants under the proviso to Section 11A(1) of the C.E. Act, 1944, the Act for short besides levying a redemption fine of Rs. 10,00,000/-. He has also imposed mandatory penalty equal to the amount of duty demanded, in terms of Section 11AC of the Act and also ordered for charging interest under the provisions of Section 11AB of the Act. 2.1The brief facts of the case are that the appellants (M/s. WI for short) are a SSI Unit engaged in the manufacture of Plywood and Blackboard on their own and under the brand name of 'Kitply Pearl' and 'Kitply Lohit' etc. in terms of a contract with M/s. Kitply Industries Ltd. (M/s. KPL, for short) and cleared the same on payment of duty to M/s. KPL. M/s. WI have allegedly contravened the various provisions of the C.E. Rules, 1944 inasmuch as they have misdeclared the assessable value of their product meant for the buyer company i.e. M/s. KPL with an intent to evade payment of C.E. duty. During search of the premises of M/s. WI, by DGAE officers on 24- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the case of the other appellants viz. M/s. WI as in this case also the seized records bearing Nos. 3/SMI/Cal/98 and W/WMI/Cal/98 were relied upon. 4.Appeal No. E/497/2002 is filed by appellants M/s. Kitply Industries Ltd. against the order-in-original No. 46/MP/Commr/2002, dated 28-3-2003 by which the Commissioner has imposed a penalty of Rs. 25,00,000/- on the appellants in terms of Rule 26 (erstwhile Rule 209A) of the C.E. Rules, 2002. The allegation against the appellants was that they paid the cash amounts to M/s. WI and M/s. NBP over and above the Bill amounts paid by Cheque for supply of different varieties of plywood and therefore they had knowledge that both the other appellants have suppressed the value of the goods supplied to them and they have therefore connived with the other appellants. After considering the reply furnished by the appellants, the order impugned imposing penalty as noted was passed against which the appellants have come in appeal. 5.Shri B.N. Chattopadhyay, learned Consultant appeared for the appellants M/s. WI and M/s. NBP. The learned Consultant reiterated the grounds of appeal and submitted that the appellants have entered into an agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, under the impugned order, the appellant firm has been imposed a penalty of Rs. 25,00,000/- under the provisions of Rule 26 of the C.E. Rules (erstwhile Rule 209A). He submitted that no penalty under this rule can be imposed on a firm and penalty under this rule can be imposed only on a person. In support of his plea he cited the order of the Tribunal in the case of Aditya Steel Industries v. CCE, Hyderabad reported in 1996 (84) E.L.T. 229 wherein it was held that penalty under Rule 209A cannot be imposed on partnership firm. 7.We have considered the submissions made by the learned Consultant for the appellants and the learned JDR for the Revenue. First we take up the appeals of M/s. WI and M/s. NBPI. In respect of both these appellants common arguments have been advanced by the learned Consultant. Appellants M/s. WI are a partnership firm. The constituted attorney of the said partnership firm is one Arvind Kumar Sultania. 8.M/s. NBPI are a proprietorship firm and the proprietor is Smt. Puspa Sultania, wife of Shri Santosh Sultania who is another brother of Arvind Sultania and Suresh Sultania. The partners of the Partnership firm, the proprietary concern, the constituted att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, it does not stand to reason why the request of the party for cross-examination has not been afforded. The request of the party for cross-examination of the said Chartered Accountant has been noted by the Adjudicating authority in para 12 of the order impugned in the case of M/s. WI. He has rejected their request by merely stating in paras 17 of the said impugned order that it was a ridiculous attempt to get rid of the tentacles of law by putting on the pretence of estrangements with him. We have also gone through the allegations made against the buyer of the goods viz. M/s. KPL and we find that no investigation has been done as to the details of extra amount alleged to have been paid to M/s. KPL on account of under-valuation, except in respect of a sum of Rs. 2,55,510/- which also has been properly explained to the effect that is the amount represented bill No. 38, dated 31-8-97 and this amount was in fact originally paid by an account payee cheque, but as the bank was closed and the appellants wanted the amount urgently, the appellants wanted the amount to be paid in cash and the cash which was kept in the briefcase of Gorachand an employee of the buyer company which was lost. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance is placed. In the instant case, it is also not the case of the department that the buyer company has made any statement that they have made any extra payment. Further, coming to the validity of the entries found in the private diary, we note that there are catenae of judgments of the Tribunal, the Hon'ble High Courts and the Hon'ble Apex Court to the effect that entries made in the private note book cannot be considered as conclusive evidence unless the entries are fully corroborated. One such judgment of the Tribunal is in the case of CCE, Chennai v. Dhanavilas (Madras) Snuff Co. reported in 2003 (153) E.L.T. 437 (Tri. - Chennai) = 2003 (54) RLT 336. It is worth noting that in the instant case, the private note book have been recovered from a person who is not even a functionary of the appellants. We also find from the records, that the appellants have filed regularly RT-12 returns which have been assessed and no discrepancy were pointed out. Such being the case, levelling allegations against the assessee at a later time at the convenience of the Department is not understandable and cannot be sustained. In view of our above discussion and finding, we find no material to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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