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2015 (10) TMI 1561 - AT - Central ExciseDuty demand - Seizure of goods - Undervaluation of goods - Non accounting goods - Reliance on diary of Production manager - Held that:- Appellant cannot accept the diary on piecemeal basis. Once they have accepted the contents of the seized diary in respect of demand of duty of ₹ 5,75,062.00 tallying with finished goods register, it is the duty of the appellant company to justify the clearance of goods on the basis of the said diary on demand of ₹ 13,64,527.00, which they failed to do so. Hence, the demand of duty of ₹ 13,64,527.00 is justified. But, we find force in the submission of the Learned Advocate in respect of demand of duty of ₹ 5,75,062.00, as the lower authorities should have verified to documents as placed by the appellants. - appellants cleared the goods under the description of Second Grade Enameled Wires of Copper-SWG Mix Size . The Adjudicating Authority observed that the cartoons were indicating F or M for fine or medium type of goods. It was observed that the description the invoices were not tallying with the grade, size as mentioned in the production slip. We find that it is evident from the record that the appellant company cleared the goods, mix size, medium grade as mentioned in the invoices and cartoons, which were arising after the production stage. The material available on record would show that the goods cleared second quality. Thus, the finding of the Adjudicating Authority that these goods are not second quality is without any basis and the demand of duty is not proper. The penalty imposed on the appellant company and the dealer are to be determined as per outcome of the denove adjudication. In any event, the penalty imposed on the employees of the appellant company cannot be sustained for the reason that they worked on the basis of the instruction of the employer. There is no material available the employees of the appellant company had gained in any manner. - Decided partly in favour of assessee.
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