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2015 (10) TMI 1291 - AT - Central ExciseDuty demand - Clandestine Clearance of goods - Held that:- Appellant has not been able to substantiate their pleading and the argument that they did not manufacture the subject goods mentioned during the period from November 2003 to January 2004 which have been called as the difference between RG-I Register and “private production register”. When there has not been any evidence of payment of duty for the said quantity of goods and there could not be any possibility of such evidence also, when there are no entries in the RG-I register for such quantities of goods produced, then certainly it is the liability of the appellant to make the payment of duty of central excise under the law of Central Excise and make good the loss caused to the National Exchequer in this regard. Case is of peculiar facts wherein department made the audit in November-December 2004 for the manufacturing operations done since November 2003 to December 2004. The activity of the Audit is done post facto operations and is not done simultaneously during the manufacturing activity for the current period. The audit is mainly based on the examination of records though the department has not taken the statement of the manufacturer of the contractor. Therefore, here it is not binding on the Department to produce some extra evidence regarding the difference in quantity of two documents namely ‘private Production Register’ and the RG-I Register. As the matter concerns with the past production and clearance, the Department can not always find such goods and produce before the adjudication. “Private production Register” cannot be questioned for the entries made therein when the manufacturer appellant themselves came forward to give explanation about the same through their letter dated 7.1.2005 mentioned above. The manufacturer appellant has not stated that the entries made there are faulty or erroneous. They only have tried to explain through the letter dated 7.1.2005 the difference in the quantities of entries made in the said private register and RG-I register, though it was not found acceptable. - No other option but to confirm the liability of payment of Central Excise Duty along with interest against the appellant for the subject production of the goods except for the production made during the period of November 2003, which has been found to be beyond the time limit of five years from the relevant date under provisions of Section 11 AC of Central Excise Act, 1944 read with the provisions of Section 11AB of the Central Excise Act 1944. - There would be no change in the penalty imposed on the appellant under Rule 25 of Central Excise Rules 2002 - Decided against assessee.
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