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2011 (2) TMI 993 - AT - Central ExciseNon payment of duty - clandestine removal - demand of duty based upon the recovery of weighment slips, read with the statements of various persons recovered during investigation - manufacturing unit's contention is that balance 35 chits were showing particulars of coal ash removed by them - Held that:- As against the detailed findings of the lower authorities indicating that the goods mentioned in the chits were rolls, which can only pertains to kraft paper and there being different truck nos. and quantities etc., the chits were not meant for coal ash, which the appellant, in their memo of appeal, have no where challenged or rebutted the finding of the lower authorities. They have simply written that 32 chits were meant for clearance of coal ash. In the absence of any rebuttal to the above finding of the lower authorities and on the face of acceptance of clandestine removal pertaining to 27 chits no justifiable reason to interfere in the above findings of lower authorities in respect of 35 chits. Similarly, in respect of 4 chits, claiming to be clearance of old machinery Machinery are covered under the definition of capital goods which are required to be duly accounted for and required to be cleared on payment/reversal of appropriate credit/duty or for job work/repairs as per procedure prescribed. Here, as find neither the assessee provided any duty paying documents nor any job work challan for removal of capital goods outside the factory. Hence, the same cannot be co-related with removal of machinery as claimed by the assessee. Thus as the assessee has already accepted/admitted in their statement regarding clearance of finished goods under the cover of said chits. demand of duty along with imposition of penalty equal to 100% of duty u/S 11AC upheld - an option to pay penalty equal to 25% of the duty be given. As regards penalty on Managing Director and Excise Assistant confirmed as find that from their statements recorded during the course of investigation, the said two appellants have admitted having indulged in clandestine removal.
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