Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Anil Choudhary (Judicial member) allowed an appeal filed against a common impugned Order-in-Appeal.
The appellant 1 were engaged in manufacture of MS Bars falling under Chapter 72 of the First Schedule to Central Excise Tariff Act, 1985 and there was another dealer who were engaged in the manufacture of M.S. Flat, Round etc. falling under Chapter 72, to which appellant- SRSDL supplied rejected MS Ingot. A search was conducted by Director General of Central Excise Intelligence (‘DGCEI’) in the factory of Bhiwadi RMPL at Bhiwadi on 06-09-2012 when the officers of DGCEI New Delhi, gathered information that Bhiwadi RMPL were indulging in clandestine removal and sale of finished goods manufactured by them without proper accounting and payment of Central Excise duty. Accordingly show cause notice was issued to all the three appellants. The Adjudicating Authority confirmed the demand of Rs 24,53,544 upon appellant No. 1 besides imposing penalty of equal amount. He also imposed penalty of Rs 2,50,000 each upon appellant 2 & 3. The Commissioner (Appeals) also upheld the Order-in-Original.
The Tribunal while allowing the appeal stated that whole of the case was based upon third party record. The director of appellant 1 specifically denied any clandestine clearance of Miss-Roll to BRMPL. The department had neither made investigation from the transporter or the truck drivers who transported the goods from the factory of the appellant 1. There was no corroborative evidence that SRSDL received raw material, manufactured and cleared the goods clandestinely. Hence allegations made against SRSDL and Sh. Ajay Kumar Malhotra, appellant 1 & 2 were not sustainable and their appeals were to be allowed. As regard appellant 3 the counsel argued that penalty under Rule 26 cannot be imposed upon a corporate body. The appellant is a private limited company hence penalty imposed was not sustainable. [Rathi Steel Dakshin Ltd. v. Commr. Of CE & CGST, Excise Appeal No. 50065 of 2019, decided on 17-03-2020]
