9911796707
TMI Blog2011 (2) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944. In addition, penalty of Rs.20,000/- and of Rs.10,000/- stand imposed upon Shri Shantilal R. Chheda, Managing Director and Smt.Nazia N. Bahamusa, Excise Assistant in terms of Rule 209A of Central Excise Rules, 1944/Rule 26 of Central Excise Rules, 2002. 2. After hearing both sides duly represented by Shri K.I. Vyas, learned Advocate appearing for the appellants and Shri S.K. Mall, learned SDR appearing for the Revenue, I find that M/s Super Delux Mills (P) Ltd are engaged in manufacture M.G. Kraft Paper falling under Chapter Heading 4804.90 of Central Excise Tariff Act, 1985. Their factory was visited by the Central Excise Officers on 25.11.00, who conducted various checks and verifications. As a result, one big size Khak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority to deal with the appellant s submissions and pass a fresh order. 5. During the course of re-adjudication, the adjudicating authority granted relief in respect of 13 chits, as the appellants could produce relevant Central Excise invoices for the same. He also discussed the appellant s plea that 35 chits were meant for clearance of coal ash and as such should not be taken into account for confirmation of demand of duty by treating the clearances as that of final product. By not accepting the above stand, he confirmed the demand and imposed penalty as indicated above, which order further stand confirmed by the Commissioner (Appeals). Hence, the present appeal. 6. Shri K.I. Vyas, learned advocate appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority, such capital goods are required to be cleared on payment of duty or on reversal of Modvat Credit etc and the appellant have failed to give any particulars for such removal, their claim cannot be accepted. 8. After carefully considering the submissions made by both sides, I find that the learned advocate appearing for the manufacturing unit is not disputing the findings of clandestine clearance arrived at by the lower authorities and confirmation of demand of duty based upon 27 chits recovered during the course of visit of the officers. His only contention is that balance 35 chits were showing particulars of coal ash removed by them. They have produced the bills and invoices showing removal of the same, which stand r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shown as GJ13T 5591 and date is shown as 26.1.00, whereas as per slip No.44 recovered by the department, it is dated 27.8.2000, Vehicle No.DN09 8681 and net weight of cleared goods is 4505. Similarly, I find none of the entries mentioned in the challans/bills submitted by the assessee are tallied with the details of chits recovered by the department. Further, I find some of the chits are showing goods in rolls, which cannot be coal ash as coal ash cannot be measured in rolls. Therefore, I find that contention of the assessee regarding clearance of coal ash under the cover of 35 chits as detailed in annexure to the reply dt.28.12.07 appears to be fabricated and after-thought by the assessee. Further, I find that the assessee has not produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nos. and quantities etc., the chits were not meant for coal ash, which the appellant, in their memo of appeal, have no where challenged or rebutted the finding of the lower authorities. They have simply written that 32 chits were meant for clearance of coal ash. In the absence of any rebuttal to the above finding of the lower authorities and on the face of acceptance of clandestine removal pertaining to 27 chits, I find no justifiable reason to interfere in the above findings of lower authorities in respect of 35 chits. Similarly, in respect of 4 chits, claiming to be clearance of old machinery, I find that Jt. Commissioner has observed as under: (e) Regarding 4 chits involving 6000 kgs and Central Excise duty of Rs.11,892/- and Ces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal s decision in the case of M/s Swati Chemicals Industries Ltd. reported in 2009 (248) ELT 421 (Tri-AHD), which provides that if all dues including penalty equal to 25% of duty is paid within 30 days of passing of the order, the penalty shall stand reduced to 25% of the duty. The said option is now given to the appellants. 14. As regards penalty of Rs.20,000/- on Managing Director and Rs.10,000/- on Excise Assistant, I find that from their statements recorded during the course of investigation, the said two appellants have admitted having indulged in clandestine removal, thus making them liable to penalty. Inasmuch as the quantum of penalties imposed upon the said appellants is not on higher side, I do not intend to interfere in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
