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2018 (1) TMI 634 - AT - Central ExciseClandestine removal - shortage of Calcium Carbonate which is an input - difference between daily production register (profit register) and daily stock register (RG-1 statutory register) - demand on the basis of consignment notice - penalty - redemption fine - Held that: - issue as regards the demand of the duty of inputs and finished goods allegedly manufactured and cleared clandestinely during excess August & September seems to be incorrect - In the absences of any evidence to indicate that the Calcium Carbonate is an input was manufactured by the appellant, the demand of excise duty is not sustainable. As regards the demand of excise duty of the goods allegedly clandestinely manufactured cleared during the period August and September 2009 I find that this allegation is based only on the mismatch of the production figures indicated in the profit register as against RG-1 register - the Revenue has not been able to conclusively prove that there was clandestine manufacture and clearances of the goods from the factory of the appellants - demand set aside. As regards, the evidences relied upon by the Ld. DR more specifically the statements of the Directors which is reproduced in the Show Cause Notice, I find that except for the statement of the Director which indicated that the goods were cleared clandestinely and cash basis further investigation had not taken place and there is no evidence on records to show that the cash was received from whom and where it was utilized - demand set aside. As regards the demand of ₹ 1,67,117/- on the goods allegedly removed clandestinely on the basis of two consignment notes, I find that the Revenue has been able to establish this demand - demand upheld. Confiscation - redemption fine - Held that: - I do not find that the said confiscation need not be upheld as there is nothing on records to indicate that the appellant had intention to remove the said goods clandestinely. In the absence of any such evidence, in my view, the confiscation of the goods needs to be set aside and I do so. Penalty - Held that: - the penalties imposed on the main appellant, the penalty of ₹ 1,67,117/- under Section 11AC needs to be upheld on the findings as recorded herein above while other penalties have to be set aside and I do so - as regards, the penalty imposed on Sh. K. D. Agarwal, the other appellant, there is nothing on records to show that he needs to penalized under Rule 26 of the Central Excise Rule 2002. Accordingly, the penalty imposed on Sh. Agarwal is set aside. Appeal allowed in part.
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