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Judgment
This appeal is directed against Order-in-Appeal No. NSK/EXCUS/000/APPL/231/18-19 dated 03.08.2018 of the Commissioner of Central Excise & CGST (Appeals), Nasik. The Commissioner (Appeals) has upheld the order of the Additional Commissioner, by which a penalty of Rs.3,00,000/- has been imposed upon the appellant under Rule 26 of the Central Excise Rules, 2002.
2.1 A case was booked against M/s. Ramdas Ispat & Metals Pvt. Ltd. (RIMPL) for clandestine clearance of M.S. ingots. One of the recipients of the goods clandestinely cleared is M/s. Rutuja Ispat Pvt. Ltd. (RIPL).
2.2 Appellant is/was one of the directors of RIPL.
2.3 The case against RIMPL was adjudicated by the Additional Commissioner vide his order referred to in para 1 above. No other person other than the present appellant has filed any appeal before the Commissioner (Appeals).
2.4 The Commissioner (Appeals) dismissed the appeal of the appellant. Hence this appeal is filed before this Tribunal.
3.1 This matter has been listed on various dates, i.e. 24.09.2019, 24.10.2019, 12.12.2019, 22.01.2020, 04.03.2020, 25.03.2021, 26.07.2021 and 07.10.2021. None appeared on behalf of the appellant on any of these occasions. While adjourning the matter on 07.10.2021, the Tribunal specifically stated as follows:-
"Appellant is absent and no one represented it. The matter is adjourned to 18/11/2021. Issue notice as a last chance for the appearance of the appellant."
3.2 When the matter was taken up today, Ms. Amruta Mishra, Advocate appeared and sought for an adjournment which could not have been granted because the matter has been adjourned more than three times for the reason of non-appearance of the appellant and any further adjournment request would have been in contradiction of the provisions of Section 35C(1A) of the Central Excise Act, 1944, which is reproduced below.
"Section 35C(1A). The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal."
Therefore the counsel was asked to argue the matter.
3.3 Learned Authorised Representative reiterated the findings recorded by the lower authorities for imposing penalty on the appellant.
4.1 Considered the impugned order along with the submissions made in appeal and during the course of argument.
4.2 While upholding the penalty as imposed by the Additional Commissioner, the Commissioner (Appeals) has observed as follows:-
"........ The lower authority at para 21 of the impugned order has analyzed the statement of Shri Prashant Shivkumar Chavan, Ex-Accountant of M/s. RIPL who was unequivocal in stating that the appellant in his capacity as Director of M/s. RIPL had paid the consideration in cash to M/s. RIMPL towards clandestinely cleared 1078.11 MT of Ingots. The appellant has neither countered this finding of the lower authority nor produced any evidence to nullify the same. As the penalty has been imposed under Rule 26 of CER, 2002, it is imperative to have a look on the said Rule which is as below:
"Rule 26. Penalty for certain offences. - (1)]Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or [two thousand rupees], whichever is greater.
(2) Any person, who issues -
(i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or
(ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater."
As the main noticee M/s. RIMPL has not filed any appeal against the impugned order the appellant as a co-noticee cannot take a plea on behalf of them. As already discussed the appellant has failed to controvert the confessional statement of Shri Prashant Chavan made in his statement dated 31.05.2012. The appellant being the Director of M/s. RIPL cannot take umbrage that he did not personally handle the impugned goods. The plea taken by the appellant defies logic and hence not acceptable. The act of paying the main noticee M/s. RIMPL in cash as consideration towards the clandestinely cleared 1078.11 MT of MS Ingots is not only nefarious but also deplorable on the aforesaid Rule 26. I therefore find no cogent reason or evidence on record to interfere with the finding of the lower authority."
4.3 From the facts available on record, I observe that penalty of Rs.4,00,000/- has been imposed on the company in which the appellant was Director and Rs.3,00,000/- has been imposed on the appellant. In my view, ends of justice will be met if the penalty imposed on the appellant is reduced from Rs.3,00,000/-to Rs.1,00,000/-.
5.0 As a result, the appeal is partially allowed reducing the penalty imposed on the appellant under Rule 26 of the Central Excise Rules, 2002 from Rs.3,00,000/- to Rs.1,00,000/- (Rupees One Lakh only).
(Order pronounced in the open court)