TMI Blog2016 (11) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods - I find that the above decision is clearly applicable to the facts of the case in hand since the documents seized from the Appellant's premises are corroborating with the set of challans used in the removal of goods without payment of duty and the statements recorded also proves the mala fide act and intention of the Appellant. The demand of ₹ 30,725/-(Rupees Thirty Thousand Seven Hundred and Twenty Five only) on the stock found short is overlapping and it is inclusive of the total demand raised. On this limited portion alone, I remand the matter to the Adjudicating Authority to verify the same with the records. On the basis of the above findings I uphold the impugned Order-in-Appeal except to the limited portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 14,67,486/- under Rule 9(2) of the Central Excise Rules read with Section 11A of the Central Excise Act, 1944 and an amount of ₹ 4.00 Lakhs deposited by the Appellant was appropriated and also imposed equal penalty under Section 11AC and also ordered recovery of interest at the appropriate rate under Section 11AB of the Central Excise Act, 1944. The Appellant being aggrieved, preferred an appeal before the Ld.Commissioner(Appeals), who rejected the Appellant's Appeal and upheld the Order-in-Original. 3. Heard both sides and perused the Appeal records. 3.1 I find from the records that the Appellant's factory was visited by the departmental Officers on 05.06.1998 and a small notebook had been recovered from the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any corroborative evidence. This is not acceptable for the reason since it is crystal clear from the impugned order that the recordings in the private notebook which was seized from the Appellant's premises is clearly tallying with the second set of challans which were seized, proves beyond doubt the Appellant's modus operandi. Further the statements given by the Supervisor and the Director of the Appellant company was only retracted after a lapse of 7(seven) months which proves that the act of retraction of statement was just an after-thought by the Appellant. 3.3 Further the Ld.Counsel submitted that the entries made in the notebook and challans were out of total production and clearance recorded in the statutory record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Revenue had placed reliance on the decision of Hon ble Supreme Court in the case of Somani Iron and Steels Ltd. v. Commissioner [2012 (277) ELT A26 (SC)] , wherein it was held when the burden of proof to prove that the documents from which the suppressed production was found from the possession of the employees of the Appellant assessee, the assessee had the burden to prove that the documents were wrong and did not belong to them. Having not discharged it, finding of suppression of production and confirmation of demand was sustainable. By respectfully following the decisions of the Hon ble Supreme Court and the High Courts, I find that the order of the Adjudicating Authority is not to be interfered with and is liable to be upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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