TMI Blog2010 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is also no reference as to how the consideration for the said final product allegedly removed clandestinely was made - Accordingly decided in the favour of the assessee As regards the duty confirmation of Rs. 1,48,926.00 in respect of the shortages of inputs and final products detected at the time of visit of the officers - the same is based upon the panchnama drawn at the time of the visit as duly accepted by the appellant as also upon the statement of the Directors admitting such clearances - Decided against the assessee - E/3685/2005 - A/880/2010-WZB/AHD - Dated:- 6-7-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri P.M. Dave, Advocate, for the Appellant. Shri S.K. Mall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Shah, a Director for the noticee was recorded on 15-3-2001 wherein he admitted the shortage of the raw materials as also the final products and revealed that the same stands cleared by them without payment of duty. He also deposited an amount of Rs. 1,48,926 in respect of such shortages. 3. During the course of search in the residential premises of Shri Babubhai Jhala, two registers i.e. lignite register and input register pertaining to 97-98 were recovered. The statement of Shri Jhala was recorded stating that the said registers were given to him by one Shri Sheth, statement of Shri Sheth was also recorded on 19-12-01 wherein he stated that the same were being maintained by one Shri Dipen Patel, who had since left the job and the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout taking purity into consideration) but the entry in RG 1 Register is the real weight i.e. the weight of the H. Acid reduced to bring it to 100% purity. Each lot number has the purity report, and by multiplying the percentage purity with as is weight, the assessee has arrived at the real weight which is entered in the RG 1 Register. The complete table showing the lot number, as is weight, purity as per test report and the real weight (100% purity weight) has already been submitted by the noticee as Annexures III IV along with their reply dated 17-5-03. After adjusting for the purity, the entry in the RG 1 matches exactly with the real weight. Therefore, there is no short accountal of H. Acid manufactured by the noticee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had admitted the clearances of the raw materials naphthalene to M/s. Parik Acid Company, Ahmedabad without payment of duty. Further another Director, Shri D.R. Shah has also admitted the illicit removal of inputs as final product on cash payment basis. The duty also stands deposited by the appellants. He accordingly confirmed the demand of duty on the above grounds. The said order is impugned before us. 9. We have heard Shri P.M. Dave, learned advocate, appearing for the appellants and Shri S.K. Mall, learned SDR, appearing for the Revenue. 10. Dealing with the first issue i.e. confirmation of demand of duty of Rs. 10,42,902.00 on account of suppression of production of H. Acid on the basis of spin flash drier reports during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an optional maintaining of the records and is not a statutorily prescribed register. There is no inculpatory statement of any person admitting clandestine removal of their final product for the above said period, it does not require the support of any decisions to hold that clandestine removal being a serious charge, cannot be based upon the recovery of private registration indicating day to day production. Reference, in any case, can be made upon the Tribunal decisions in the case of Ashwin Vanaspati Industries Pvt. Ltd. v. Collector of Central Excise reported in 1992 (59) E.L.T. 175 (Tribunal) as also to another judgment in the case of T.G.L. Poshak Corporation v. CCE, Hyderabad reported in 2002 (140) E.L.T. 187 (Tri. - Chennai). Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the same is based upon the panchnama drawn at the time of the visit as duly accepted by the appellant as also upon the statement of the Directors admitting such clearances. Not only that they have also disclosed the name of the buyer and has admitted that the consideration was received in cash. They had voluntarily deposited the amount in question. As such we find no merits in learned advocate s contention that the actual weighment was not done and the shortages were detected only on the basis of estimation. As the appellant s directors have admitted shortages and their clearance to M/s. Parik Acid Company and receiving of consideration in cash, we uphold the confirmation of demand of duty on the said ground. Penalty to the extent of 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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