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2009 (8) TMI 991

..... der 11AC are present - As regards penalty on the Managing Director, in view of the fact that this is a case of clandestine removal of the finished goods and the same was with his knowledge and approval, the Asstt. Commissioner rightly imposed penalty on him and the Commissioner (Appeals) order setting aside the penalty is not correct. - since the penalty under Section 11AC has been reduced to 25% of the duty amount, the penalty on Shri Shailendra Khandelwal, Director of the respondent-company is also reduced to ₹ 5,000/-. - appeal allowed - decided partly in favor of Revenue. - E/2006 and 2010/2007-SM - 1068-1069/2009-SM(BR)(PB) - 12-8-2009 - Shri Rakesh Kumar, J. Shri S.K. Bhaskar, DR, for the Appellant. None, for the Respondent. ORD .....

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..... y should have been imposed even though the duty had been paid prior to the issue of show cause notice, that in view of Hon ble Supreme Court judgment in the case of Rajasthan Spinning reported in 2009 (238) E.L.T. 3 (S.C.) the penalty under Section 11AC has to be imposed if the elements for imposition of penalty, fraud, suppression of fact, wilful misstatement, deliberate violation of any of the provisions of Central Excise Act, 1944 of the Rule made thereunder with intent to evade payment of duty, are present and that in view of the Hon ble Supreme Court s judgment, the judgment of Hon ble Bombay High Court in the case of Gaurav Mercantile Ltd. (supra) or the judgment of Hon ble Karnataka High Court in the case of Shree Krishna Pipe Indust .....

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..... gible for the lower penalty under proviso to Section 11AC. 5. I have carefully considered the submissions from both the sides. The shortage of finished goods - 5485.70 Kgs of plain plastic film had been detected by the Officers at the time of surprise visits on 19-7-05 and at that time Shri Shailendra Khandelwal, Director of the respondent-company could not give any explanation for the shortage and in his statement dated 19-7-2005 he admitted that the goods had been removed without payment of duty and he also paid entire duty at that time on the shortage. In view of the above I hold that this is a case of clandestine removal and the elements of Section 11AC for imposition of penalty under 11AC are present. Hence the Commissioner (Appeals) s .....

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