TMI Blog2002 (6) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... , partner of the said firm. On scrutiny of their statutory records and verification of stocks, it was found that processed man-made fabrics bearing lot Nos. 117, 119, 121 125 totally measuring 45,064 L. Mtrs. valued at Rs. 6,77,467/- and involving a central excise duty of Rs. 1,35,494/- were found short as against the balance reflected in their RG 1 Register. A statement was recorded from Shri Farooqbhai Iqbalbhai Surti, partner of the firm who in his statement of even date admitted that the said fabrics were removed clandestinely without accounting them in their RG 1 Register and without paying duty of excise. Consequently, they debited the aforesaid amount of duty without protest in their PLA on 24-2-98 and 27-2-98. A further statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be recovered from them under Rule 9(2) of the Central Excise Rules, 1944 and since they had already debited the said amount in their PLA, why the same should not be confirmed. The appellant firm was called upon to show cause why a penalty should not be imposed under Rule 173Q of the Central Excise Rules, 1944 and under Section 11AC of the Central Excise Act, 1944. Shri Farooqbhai Iqbalbhai Surti, partner was called upon to show cause why a penalty should not be imposed on him under Rule 209A. 2. After considering the reply of the party, the Addl. Commissioner of Central Excise, Ahmedabad-I vide his Order dated 24-11-98 confirmed the amount of Rs. 1,35,494/- as duty under Section 11A(2) of the Central Excise Act, 1944. Since the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 14-8-98, the appellants with regard to the date of hearing fixed on 19-8-98 by the adjudicating authority, submitted that they were granted permission for inspection of the records and taking out the xerox copies; that since they were in the process of scrutiny of the record and taking out the xerox copies, the personal hearing fixed on 19-8-98 may be postponed to a date after the inspection and the process of photo copying of the documents was over. With regard to a further date of personal hearing fixed on 22-9-98, it is contended that their Advocates vide letter dated 22-9-98 had requested that the Shri Paresh M. Dave, Advocate had gone out of station and therefore they requested for fixing any other date of hearing. It is contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Central Excise records and without paying duty of excise under his direction; that he had sold processed fabrics on cash payment to some buyers not known to him through a commission agent/dalal. These inculpatory statements have not been retracted by the deponent at any time thereafter or even till date. The appellants even voluntarily debited the Central Excise duty of Rs. 1,35,494/- in their PLA on 24-2-98 and 27-2-98 and wrote a letter dated 6-3-98 to the department to this effect. It is only in the reply dated 25-7-98 to the show cause notice that the appellants submitted for the first time that no stock taking was undertaken by the Central Excise authorities and there was no discrepancy found. This submission is not supported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hearing. In any case, it is observed from the record that the appellants have not made this as one of the points in their first appeal before the lower appellate authority. In view of these facts, there is no force in the contention about the violation of the principles of natural justice by the original authority. As regards the order of Commissioner (Appeals), the contention raised by the appellants is that S/Shri Paresh M. Dave and D.K. Shah, Advocates for the party appeared before the Commissioner (Appeals) for hearing on 15-2-2001 and 13-2-2001 and made their submissions before him. At the request of the ld. Counsels for the party, another hearing was fixed on 19-6-2001. However, Shri Paresh M. Dave, Advocate sent a letter dated 18-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed for hearing. Consequently, there is no alternative but to accept the facts recorded by the lower appellate authority in his order that on 16-7-2001 nobody appeared for hearing nor any communication was received from them. The submissions of the appellant in this regard therefore have to be dismissed, as unsubstantiated. 5. The appellants are further contesting against the imposition of penalty equal to the duty amount on them and against the penalty imposed on Shri Farooqbhai under Rule 209A. It is contended that the penalty under Section 11AC is maximum amount laid under these provisions. It is contended that the Commissioner (Appeals) acted without jurisdiction in confirming the order of the Addl. Commissioner that penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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