TMI Blog2016 (1) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in length which is a trade practice and difference in stock works out to 2% of the total purchases made by M/s. Metro. This contention has not been controverted by the Revenue with cogent reasons. Moreover, the Revenue has also failed to come to a concrete conclusion that if the goods have not been transferred from M/s. Pymen Cables as the charge of clandestine removal against M/s. Pymen Cable has been set aside, then from where, Metro procured such wire and cables. In these circumstances, the contention of M/s. Metro is acceptable that there is marginal difference of 2% of stock in excess is due to excess length of wire and cables on spool being a trade practice. As they are receiving wire and cable of spools and on having spools on wir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to the appellants for initiation of proceedings against them. The show cause notice was adjudicated and goods were seized, various penalties were also imposed on the appellants. The said order was challenged before the learned Commissioner (Appeals) who hold that goods worth ₹ 18,27,926/- is liable for confiscation out of seized goods valued at ₹ 73,28,787/-, and imposed a redemption fine of ₹ 2 lakhs, and also imposed penalty on Shri Sandeep Garg of ₹ 50,000/- under Rule 26 and on Shri Vinod Garg a penalty of ₹ 10,000/- under Rule 26 of the Central Excise Rules, 2002. Aggrieved from the said order, appellants are in appeal before me. 3. The learned Counsel for the appellants submits that M/s. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spools is having marginal excesses, the difference in stock of ₹ 18,27,926/- when compared to the total purchase of ₹ 8.5 crores worked out to be 2%. Therefore, it cannot be said that goods in question is not duty paid stock. Learned Commissioner (Appeals)has not given any credence to these submissions and there is no other evidence on record to show that M/s. Metro has purchased such a stock without payment of duty. Moreover, the charge against M/s. Pymen Cables is only of clandestine removal was held by the learned Commissioner (Appeals) on presumption and surmises. Therefore, the burden of proof lies on the department for alleging the goods as non-duty paid in the stock of M/s. Metro. Therefore, the goods in question is not, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge of clandestine removal of goods, in these circumstances, the penalty on Shri Vinod Garg, Proprietor of M/s. Pymen Cables is not imposable when Shri Vinod Garg is not involved in the activity of clandestine removal. 8. I also find that in this case, out of total seized goods of ₹ 73,28,787/-, the learned Commissioner (Appeals) held that goods amounting to ₹ 18,27,926/- is liable for confiscation on the ground that M/s. Metro was not able to show the invoices for the same. The appellant has contended that they are receiving wire and cables of spools and selling the wire and cables after cutting the size according to the requirements of various customers. For selling the wires and cables on spools in length, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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