TMI Blog2011 (3) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of raw material, use of electricity, sale of excess quantity of gutkha, clandestine removal of gutkha, manner of transport and the mode of receipt of the sale proceeds etc - the said circular is not in the nature of compounded levy scheme requiring an assessee to pay duty on the declared average production - Held that: the appellants have been filing all the declarations and intimating about the changes to their jurisdictional authorities - Decided in favor of the assessee - E/681/2010 - S/383/2011-WZB/AHD - Dated:- 25-3-2011 - Ms. Archana Wadhwa, Dr. P. Babu , JJ. REPRESENTED BY : Shri V.K. Agarwal, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by taking into account the declared average production of 3300 pouches per hour per machine, the Revenue entertained a view that the appellant had reflected less production in their records and the excess production stands removed by them clandestinely. Accordingly proceedings were initiated against them for confirmation of demand, which stands decided by the impugned order of the Commissioner. 5. After going through the impugned orders, we find that the sole reason for arriving at the clandestine manufacture and removal of the final product is that the production shown by the appellant is less than the average production declared by them. The appellants have contended, during the course of adjudication that the central excise duty is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made to the suppliers or the payments received from the buyers of gutkha. As such it is prayed that the stay be granted unconditionally. 7. Countering the above arguments, learned DR has submitted in as much as the appellants have themselves submitted the average production to be 3300 pouches per hour per machine, it was for them to establish as to how such declared production could not be achieved by them. 8. After carefully considering the submissions made by both the sides and after going through impugned order, we note that the only ground for arriving at the finding of the clandestine removal is the declaration made by the appellant as regards the average production. As rightly contended by them there is no other evidence much l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Rule 25 in as much as they have not accounted for gutkha manufactured by them. So, the assessee is liable for penal action under Rule 25 of Central Excise Rules, 20002 . 9. As is seen from above, the appellants have been filing all the declarations and intimating about the changes to their jurisdictional authorities. The Commissioner has herself observed that there was no willful suppression of facts by the appellant. Though the said observation has been made by the Commissioner in the context of Section 11AC, we note that the same is equally applicable for the purposes of confirmation of demand of duty. As is clear from above, the duty is being demanded only on the difference between the actual production and the declared average pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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