C.V.R. DIKSHITULU Vs. COMMISSIONER OF CUS., C. EX. & S.T., GUNTUR
LAWS(CE)-2015-6-40
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 19,2015

C.V.R. Dikshitulu Appellant
VERSUS
Commissioner Of Cus., C. Ex. And S.T., Guntur Respondents

JUDGEMENT

ARCHANA WADHWA, J. - (1.)The challenge in the present appeal is to imposition of penalty of Rs. 50 lakhs imposed under Rule 209A of Central Excise Act, 1944. The learned counsel appearing on behalf of the appellant submits that this is a third round of litigation. It is the submission that in the first round of proceedings, the adjudicating authority imposed penalty of Rs. 1,00,000/ - by Order -in -Original No. 12/2006, dated 12 -12 -2006. It is the submission that the Tribunal set aside the Order -in -Original dated 12 -12 -2006 and the matter was remanded back to the adjudicating authority for re -consideration of the demand. In the second round of proceedings, the adjudicating authority imposed penalty of Rs. 50 lakhs under Rule 209A of the erstwhile Central Excise Rules which is more than the penalty imposed by the adjudicating authority in the first round of proceedings. It is his submission that the appellant joined as General Manager of the company, M/s. Ram Poly Fibres Ltd. on 2 -6 -1995 while the demand involved for the period from 1 -1 -1995 to 3 -8 -1995.
(2.)The learned DR reiterates the findings of the adjudicating authority for the imposition of penalty on the appellants. After hearing both the sides, I fully agree with the learned advocate that the penalty originally imposed upon the appellant cannot be enhanced when the matter was remanded to him on the appeal filed by the appellant. The original penalty imposed was never challenged by the Revenue and the appellant cannot be put to a more disadvantageous position than the one he was in, at the time of the original adjudication, with which he was aggrieved with.
2.1 As regards the imposition of penalty upon the appellant, it is seen that he was the General Manager of the Company w.e.f. 2 -6 -1995. The clandestine removal findings against the main company are for the period from 1 -1 -1995 to 3 -8 -1995 i.e., during the period when he was not in the services of the company. On going through the findings of the Commissioner for imposition of penalty upon him, it is seen that the penalty stand imposed on the sole ground that he was the General Manager of the company and as such, was responsible for production and clearance of the goods without payment of duty. Apart from the above observations made by the adjudicating authority there is no evidence, at all, to show that the said appellant was in any way connected with the clandestine activities of the manufacturing unit. Merely because he was the General Manager for a limited period, cannot make him liable to penalty under Rule 209A unless there is evidence to show that such clandestine activity was being carried out with his knowledge and consent and under his instructions. As such, in the absence of any evidence, I find no reasons to impose penalty upon him. The same is accordingly set aside and the appeal is allowed with consequential relief.

(Order pronounced in open Court on 19 -6 -2015)

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