TMI Blog2000 (11) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... for pharmaceutical products. During the relevant period, the appellants were working under the small-scale exemption and were availing the benefit of Modvat credit of duty paid on their inputs. 3. On 8-9-1997, the appellants factory was visited by the Officers of Central Excise who after conducting the various checks and verifications, found a shortage of about 2564 Kgs. of Aluminium Foil, which is their input, than the recorded balance under RG 23A Part-I. The Modvat credit of duty of Rs. 40,000.00 involved in the said inputs, was debited by the appellants. Subsequently, a show cause notice was issued to the appellants on 9-7-1998 raising demand of duty of Rs. 2,84,088.00, on the allegation of clandestine manufacture and removal of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for deciding the quantum of penalty afresh. He also observed that though the adjudicating authority has given a finding for imposition of personal penalty under Rule 209A of the Central Excise Rules, 1944, on Shri Pradip Kumar Bhanot, no penalty has been imposed upon him and as such while remanding the matter, he also directed the adjudicating authority to mention the amount regarding imposition of penalty under Rule 209A on Shri Pradip Kumar Bhanot. The above Order of the Commissioner (Appeals) is impugned before me. 5. Shri B.N. Chattopadhyay, learned Consultant appearing for the appellants assailed the above Order on various grounds. He submitted that the appellants are engaged in the making and supplying of packing material mainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in remanding the matter and should have decided the quantum of personal penalty imposed. In respect of the imposition of personal penalty on Shri Pradip Kumar Bhanot, he submitted that no penalty had been imposed upon him by the original authority and there was no appeal by the Revenue and therefore, the Commissioner (Appeals) was not justified in directing the original adjudicating authority, while remanding the matter to him, to impose personal penalty upon Shri P.K. Bhanot under the provisions of Rule 209A of the Customs Act, 1962. 7. Shri V.K. Chaturvedi, learned SDR for the Revenue submitted that the Revenue has recovered the invoices showing the movement of the goods from the appellants factory to their customers without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be fully correlated inasmuch as sometimes only a part of the goods were cleared under challan and another part sent by them subsequently, for which only one invoice for entire duty covered by Road Challans was being issued by them. They also referred to the statement of their major buyer, M/s. C.I. Laboratories given to the Central Excise Officers at the time of their visit during the post-seizure investigation, which is to the effect that all the Road Challans had been accounted for by way of Central Excise Invoices issued subsequently and nothing has been received by them without payment of duty. My attention has also been drawn to the certificates from the appellants customers stating that the goods sent by the appellants were subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that the said duty was also paid by them and the subsequently issued invoices though tallied in respect of their customers names and the description of the goods, the same had not tallied with the quantity cleared under the various Challans. As such, I feel that the benefit in respect of duty of Rs. 1,06,586.38 cannot be extended to the appellants. As regards the balance quantum of duty, I find that the appellants have correlated the subsequently issued invoices with the Road Challans and as such, by taking the same into consideration and in the absence of any other corroborative material on record produced by the Revenue, I set aside the balance amount of duty confirmed against the appellants. As a result, out of the total duty-dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority for deciding the quantum of personal penalty, the same can be decided at the appellate stage itself. As such, taking into account the overall facts and circumstances of the case including the factum of reduction of duty and adjustment of the same against the Modvat credit, I find that the quantum of penalty of Rs. 20,000.00 would meet the ends of justice. 12. As regards the direction of the Commissioner (Appeals) to the original adjudicating authority for imposing personal penalty upon Shri Pradip Kumar Bhanot under the provisions of Rule 209A, it is seen that though the original adjudicating authority gave an adverse finding against Shri Pradip Kumar Bhanot, but no penalty was imposed by him upon the said partner. No appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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