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2023 (12) TMI 114 - AT - Central ExciseClandestine removal - levy of penalty under Rule 209A of the Central Excise Act, 1944 - alleged active participation in removing and dealing with the goods which they know were liable for confiscation - HELD THAT:- This case is, in any case not different from the case where demands have been dropped by the Adjudicating Authority holding the end products as a product of the printing industry. This is the major amount on which in the demand confirmed i.e. total value of the goods as per the table in Para 10.17 is Rs.98,483/-. Nothing has been stated in the impugned order as to why and on what basis invoice value has been changed from Rs 45,501/- to Rs 98,483/- - there are no merit in confirmation of this demand when exact facts in respect of these invoices had not been adduced/adjudicated in the present order. The order in respect of these seven invoices is only made on the basis of surmises and presumptions. The Commissioner has not recorded that the goods that are to be confiscated are excisable goods but he has only expressed his doubt and observed that the unaccounted finished goods are subject to multifarious uses and are leviable to Central Excise duty. In the first part he says these may not be excisable or subject to excise duty as per the facts on record and in the next breath without ascertaining the exact fact and nature of the goods he held them liable for confiscation - It is a settled law that while passing an order for confiscation at least the excisable nature of the goods should have been determined. It is the predetermined mindset of the adjudicating authority whereby he has in respect of these goods without deciding the excisability held the goods to be liable for confiscation. Confiscation cannot be made on the basis of such doubts as expressed by the Commissioner. Thus in the present case the benefit of the doubt which existed in the mind of adjudicating authority should have been extended to the appellant. Order for confiscation and redemption fine needs to be set aside - As demand of duty and order for confiscation are set aside, there are no reason for imposition of penalty under Section 11 AC of the Central Excise Act and these penalties are set aside - As penalties on appellant No.1 is set aside, there are no merit for imposition of penalty on appellant No.2 & 3 accordingly the same are set aside. Appeal allowed.
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