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2011 (1) TMI 1017 - AT - Central ExciseGoods cleared without payment of duty - raw material and the finished goods lying in the factory unaccounted were detained under the reasonable belief that the same were to be removed for clandestine removal - demand raised along with penalty - Held that:- The appellant have conceded the confiscation of 150 barrels seized from the vehicle. Therefore, there is no infirmity in the adjudicating authority's order insofar as confiscation of these goods are concerned. As regards the good seized from the factory premises on 15/04/2006 valued at ₹ 14,61,498/- is concerned the department could not prove that there was any attempt on the part of the appellant to remove the goods clandestinely. Therefore, the seizure and confiscation of these goods is not sustainable in law. As regards penalty on Shri Haresh Dharmani, Director of the assessee, the department failed to produce any evidence that he was in any way involved in the transportation / removal, etc. in respect of the goods in question - unable to produce any evidence regarding any direct involvement of the Director of the company. Therefore, penalty on the Director is not sustainable in law. So far as penalty under Section 11AC is concerned, no option was given to the appellant at the time of passing of the adjudication order. Therefore, option should be given to the appellant for payment of 25% of penalty in view judgment in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI). Assessee also contended that so far as 178 barrels are concerned they were not given the documents seized by the department which because of which they could not establish before the department that these goods were cleared on payment of duty. Therefore, this aspect requires to be reconsidered - case remanded to the adjudicating authority for deciding the penalty amount and interest in respect of 150 barrels. Redemption fine in respect of these goods should be re-determined considering the value of the goods and the duty amount involved.
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