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2012 (7) TMI 835 - AT - Central ExciseDuty demand - Clandestine removal of goods - Penalty u/s 11AC - Fact admitted by authorized signatory - Held that:- Statement of the authorised signatory clearly indicates that the appellants were removing the goods illicitly from the factory premises. On specific question from the Bench, the appellant’s counsel was not able to state whether the said statement was retracted or any contrary evidence is produced on record except for the invoices which indicate purchase of textured yarn from the market. We find that the first appellate authority as well as the adjudicating authority in their orders have properly analysed the evidences produced by the appellant. We find only one small error in the said findings as regards the appellant’s production of invoices, challans was not put to scrutiny by the lower authorities only on the ground that it was produced at appeal stage. Be that as it may, as there is admission by the authorised signatory of the appellant’s firm and also there being no retraction, and there being no defence reply before the adjudicating authority, we consider the said statement as an evidence to hold that the appellant had in fact engaged themselves in illicit clearance of the final products from the factory premises during the month of April 1995. To that extent, the appellant’s appeal against the impugned order stands rejected. During the relevant period provisions of Section11AC were not in existence and hence cannot be pressed in to services for imposition of equivalent amount of penalty. Since we have upheld the charge of clandestine removal of the goods from the factory premises of the main appellant, we hold that the main appellant is liable to be penalised under the provisions of Rule 173Q Erstwhile Central Excise Rules, 1944. In the facts and circumstances of this case is over view a little leniency may be required in imposing penalty on the appellant. Accordingly, in our considered view, the ends of justice will be met, if the penalty imposed under Rule 173Q of erstwhile Central Excise Rules, 1944, on the main appellant M/s. KDS Textiles Pvt. Ltd. is reduced - Decided partly in favour of assessee.
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