TMI Blog2007 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is the de novo order passed consequent to Final Order Nos. 513 514/2006, dated 22-2-2006 passed by this Bench. Initially, Tribunal remanded the matter on grounds of violation of Principles 9 Natural Justice. In the impugned order, the Commissioner has demanded an amount of duty of Rs. 81,48,576/-on the value of the alleged clearances of Socks without payment of duty under proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944. Equal penalty under Section 11AC has been imposed. A penalty of Rs. 5,00,000/- has been imposed on Shri Prabhat Kumar Sethia, Managing Director, under Rule 209A of the Central Excise Rules, 1944. Interest under section 11AB has been demanded. The appellants strongly challenge the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no substance in the allegation of shortage. The following case- laws are relied on (a) Tata Chemicals Ltd. v. CCE, Rajkot - 2003 (158) E.L.T. 305 (Tri.- Del.) (b) Pacific Granites v. CCE - 2001 (128) E.L.T. 421. (v) The presumption of removal that would arise on account of a statutory stock taking under Rule 233A of the erstwhile Central Excise Rules, 1944 would not apply in this case. (vi) It was further urged that in respect of the goods cleared into the DTA without any permission from the Development Commissioner, Visakhapatnam, Revenue has demanded duty in terms of proviso to section 3 of the Central Excise Act. But, during the relevant period, when the goods were cleared into DTA without permission from the Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty in respect of 2,28,376 dozen pairs. Penalty equal to duty evaded has been imposed on the main appellant-unit. Penalty of Rs. 5,00,000/- has also been imposed on the Managing Director of the unit under Rule 209A of the Central Excise Rules. 6.1 With regard to the shortage, the Commissioner has stated in his findings that the shortage of 25,315 dozen pairs of socks was not refuted by the assessee at any point of time. This, actually on the face of it, is incorrect, as the Commissioner himself has recorded that on 12-4-2002, the appellants had informed the department that during stock verification, only one godown was verified and there was finished goods stock in another godown also. Having stated this, we do not understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emselves. Their contention is that the quantification of duty is incorrect as Revenue has invoked the proviso to Section 3 for calculating the duty liability. During the relevant period, in respect of the goods cleared to DTA without any permission from the Development Commissioner, the correct provision would be the main Section 3(1) and not the proviso. In other words, the duty payable would be Central Excise Duty. The proviso to Section 3(1) was amended only w.e.f. 14-5-2001. Therefore, the clearances of the appellant up to 13-5-2001 would be governed by the main section. Since the Central Excise duty on socks was NIL, a major quantity would not suffer any duty. However, we find that after 14-5-2001, as per annexure to the Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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