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TMI Blog2011 (6) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants. 2. As per facts on record, the appellant M/s. Narmada Fabrics is engaged in the manufacture of man-made fabrics (processed) falling under Chapter heading 54 of Central Excise Tariff Act, 1985. Shri Ramkumar C. Agarwal is one of the Directors of the said manufacturing unit. The appellant s factory was visited by the Central Excise, Preventive Officers on 20.02.2003, who conducted various checks and verifications. A shortage of 182365.190 L.Mtrs of processed grey fabrics was detected. Further, excess quantity of 466681.27 L.Mtrs were found than the recorded balance in the lot registers. 3. On enquiry, Shri Ramkumar Agarwal admitted that the processed fabrics found short have been sold by them in the open market, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y original adjudicating authority, vide which he has confiscated the fabrics valued at Rs. 70 Lakhs (approximately), with an option to the appellants to redeem the same on payment of redemption fine of Rs. 25 Lakhs. Duty of Rs. 8,40,027/- leviable in respect of the seized goods, which were cleared by the appellants while being under seizure, was also confirmed. In addition, personal penalty of Rs. 8.50 Lakhs was imposed on manufacturing unit, in terms of Section 11AC of the Central Excise Act, 1944 and penalty of Rs. 8 Lakhs was imposed on Shri Ramkumar Agarwal, Director, under Rule 26 of Central Excise Rules, 2002. 6. Being aggrieved with the said order of Additional Commissioner, the appellants filed appeal there against before Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so stands contended that the fabrics relating to some of the lot numbers were during the material period, lying in grey condition, even though the officers had shown the same as finished fabrics and Panchnama is totally silent about the variety/ condition/state of fabrics projected as excess finished fabrics. 8. The above plea of the appellants are reiterated before us. We find that Commissioner (Appeals) has not accepted the same on the ground that there is no substantiation and the witnesses as also the Director was present at the time of verification of the goods. Not only that, we note that Shri Ramkumar Agarwal, Director of the unit has admitted before Panchas about the excess quantum of fabrics available in the factory and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also note that the appellants, in fact, disposed of the said seized goods which were handed over to them under a proper Supurdaginama, during the period of their seizure itself, without seeking provisional release of the same. The act of the appellants in clearing the goods clandestinely, without payment of duty, even when the same were under seizure, reflects upon their malafide. Learned advocate has not contested the above issue of clearance of seized goods during the course of the same being under seizure. The above fact itself shows as to how much the appellants respects the law of the land and adhere to the same. To contest the fact of excess found goods as recorded in the Panchnama, on the general pleas that the stock taking was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose lesser penalty, in terms of the provisions of Section 11AC. As such, we modify the said order of Commissioner (Appeals) and enhance the penalty equivalent to the duty amount of Rs. 8,40,027/-. Revenue s appeal against the lowering down the penalty by Commissioner (Appeals), is accordingly, allowed. However, at this stage we note that no option to pay 25% of the penalty, within a period of 30 days from the date of receipt of the order was extended by the lower authorities, in terms of provisos to Section 11AC, and the same can be extended to them now, in the light of the Tribunal decision in the case of M/s. Swati Chemicals Industries & Others as reported in 2009 (94) RLT 684 (CESTAT). As such, by following the Tribunal dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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