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2015 (12) TMI 660 - CESTAT NEW DELHI

2015 (12) TMI 660 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - Clandestine manufacture and removal of goods - Shortage of goods found - Held that:- At night of 2nd and 3rd October, 2012, when the Jurisdictional Central Excise Officers visited the unit along with two punch witnesses at 00.30 hours, the factory was found to be working inasmuch as the generator was running. The fact that on the arrival of the Central Excise Officers, the labourers including the authorized signatory switched o .....

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proprietor Shri Sudhir Kapoor who came in the morning also accepted the shortage. In these circumstances, we are of the prima facie view that even if the relied upon documents are not supplied, the non-supply of relied upon documents has not vitiated the proceedings. - this is not the case of total waiver - Partial stay granted. - Stay Application No. E/Stay/54176/2014 in Appeal No. E/53730/2014-EX [DB] - Stay Order No. 51811/2015 - Dated:- 7-4-2015 - Shri Rakesh Kumar, Member (Technical) And S .....

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t the factory used to seal the factory premises in the evening and the factory was not supposed to operated during night. The Jurisdictional Central Excise Officers on receipt of Intelligence that the appellant are indulging in unaccounted manufacture and clandestine removal of cigarettes, visited their factory on 3rd October, 2012 at 00.30 hours. At that time, the search was conducted in presence of two independent punch witnesses. At that time, the visiting officers found that the generator of .....

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of the punch witnesses and it was found that the unit was manufacturing cigarettes by breaking seals of machines. Shri Sudhir Kapoor, the proprietor of the appellant unit, was called and he reached in the factory in the morning at 08.00 hours on 3/10/2002 and produced Central Excise records. The stock taking of the packed cigarettes was done and the shortage in the stock of finished and packed cigarettes was found viz.-a.-viz., the compliance recorded in the RG-1 Register. The duty involved on t .....

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,42,566/- on the shortage of cigarettes along with interest on this duty under section 11AA of Central Excise Act, 1944, (b) ordered confiscation of the unaccounted cigarettes involving duty of ₹ 5,16,525/- with option to redeem the same on redemption fine of Rs. One lakhs; and (c) imposed penalty of ₹ 67,59,091/- (6242566+516525) on the appellant confirm under Rule 25 of the Central Excise Rules, 2002 read with section 11AC of Central Excise Act and (d) imposed penalty of ₹ 5 .....

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3/10/2012; that the copies of relied upon documents including panchnama of stock taking have not been supplied to the notice, even though the appellant under their letter dated 25/5/2013 had requested the department for supply of relied upon documents, the same have not been supplied; that on account of non-supply of relied upon documents, the appellant could not submit reply to the show cause notice ; that the matter has been adjudicated by the Commissioner without hearing the appellant and as .....

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ot sustainable and that in view of this, the requirement of pre-deposit of the duty demand, interest and penalty by the appellant company for hearing of their appeal may be waived and recovery thereof may be stayed. He also pleaded that the matter needs to be remanded to the Commissioner for de-novo adjudication after supplying the relied upon documents and grant of personal hearing to them. 4. Shri M.S. Negi, ld. DR, opposed the stay application by reiterating the findings of Commissioner in th .....

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se is based on the shortage of finished cigarettes in the course of the stock taking on 03/10/2012 and since the stock taking had been conducted in presence of the punch witnesses, the non-supply of panchnama and other documents does not make any difference; that the factory of the appellant firm manufacturing the cigarettes was under physical control and was working from 9.00 A.M. to 6.00 P.M., during day time ; that every day in the evening, at 6.00 P.M. the machines used to be sealed by the J .....

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erated and the seals had been broken; that in any case, in these circumstances of the case, the non-supply of panchnama statements, etc, would not make any difference and that in these circumstances, this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The undisputed facts are that the factory of the appellant firm was working during day time from 9.00 A.M. to 6.00 P.M. and in the evening the ma .....

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