TMI Blog2015 (10) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. - appellant had paid duty during investigation and the adjudicating authority should have extended the benefit to pay reduced penalty of 25% of duty within stipulated period. - Adjudicating authority shall re-quantify the demand of duty by extending the benefit of cum-duty price. We also direct that the appellant may opt to pay the entire amount of duty alongwith interest and penalty of 25% of duty within 30days from the date of communication of this order, as per Section 11AC of the Central Excise Act, 1944 - Appeal disposed of. - Appeal No. : E/1360/2008 - ORDER No. A/10595/2015 - Dated:- 12-5-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant : Shri Mukund Chauhan, Chartered Accountant For The Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on documents in File A-1 . He further submits that the appellant produced invoices in respect of the quantity indicated in File A-1 before the Commissioner (Appeals) who has not considered the documents. Regarding demand of duty on the basis of other Files, it is his submission that the adjudicating authority modified the demand on the basis of value of uniform shrinkages, as contended by the appellant. Both the lower authorities below have not extended the benefit of cum-duty price. He relied upon the decision of the Tribunal in the case of Mahavir Plastics vs. CCE, Mumbai - 2010 (255) ELT 241 (Tri. Mumbai). He submits that appellant deposited an amount of ₹ 20 Lakhs during investigation which was appropriated in the adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of duty. They have also contended before the Commissioner (Appeals) that adjudicating authority had not considered wastage of goods due to shrinkage. The Commissioner (Appeals) has given detailed finding on this issue, as reproduced below:- 5. The appellant have in their letter dated 04.8.2008 reproduced certain copies of invoices to show that goods mentioned in the register A/1 were cleared under Central Excise invoices on payment of duty. However, on perusal of these invoices these are found to be of period after the search operations. The investigations revealed that the file A/1 contained paper recovered from cabin of the program supervisor. In his statement dated 10.07.2003 Shri Tagariwala, program supervisor stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise officers visited appellant s factory on 10.07.2003 and the appellant produced the copies of the invoices by 04.08.2008 before the Commissioner (Appeals). We agree with the findings of the Commissioner (Appeals) and such invoices, can not be accepted at this belated stage. It is also noted that the appellant have not submitted any reconciliation of the demand of duty in respect of the said invoices. The shrinkage as claimed on the basis of sample invoices, the appellant has not produced any authentic basis for shrinkage. Hence, we do not find any force in the submission of the learned Consultant. 7. We agree with the submission of the learned Consultant that the cum-duty benefit should be extended. The Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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