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TMI Blog2017 (1) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,09,892 from M/s Desai Electronics Pvt Ltd, confiscation under rule 173Q(1) of Central Excise Rules, 1944 of goods valued at Rs. 36,000 seized from this unit and allowed to be redeemed on payment of fine of Rs. 9,000, confiscation of capacitors bearing DEC valued at Rs. 5760 under rule 173Q(1) of Central Excise Rules, 1944 seized from M/s Desai Engineering Pvt Ltd and allowed to be redeemed on payment of fine of Rs. 1,500, confiscation of capacitors bearing DEC valued at Rs. 13,48,002.36 under rule 173Q(1) of Central Excise Rules, 1944 seized from M/s Desai Engineering Pvt Ltd and allowed to be redeemed on payment of fine of Rs. 3,37,000 and imposition of penalty of Rs. 5,00,000, Rs. 2,00,000 and Rs. 3,00,000 respectively on M/s Desai Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndestinely removed, held liable to duty of Rs. 23,858.94. It was further held that the trading entity had sold products worth Rs. 11,19,823.85 in excess of value of supplies from M/s Desai Electronics Pvt Ltd indicating clandestine removal by the latter by evading duty of Rs. 1,76,372.26. Holding that M/s Desai Engineering Pvt Ltd had sold capacitors branded as DEC to the extent of Rs. 3,40,491 in excess of supplies from M/s Desai Electronics Pvt Ltd which were allegedly removed from the premises of the latter without paying duty of Rs. 53,627.40, this amount was added to the liability to be recovered from M/s Desai Electronics Pvt Ltd. M/s Desai Electronics Pvt Ltd challenges this entire recovery supra of Rs. 3,09,276.91. 4. In relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves around two distinct aspects: evasion of duty by misuse of facility afforded by the small scale exemption notification and evasion of duty by unaccounted production with clandestine removal thereof. The adjudicating authority has dropped the first and confirmed the second. The modus operandi that led to the confirmation was the manufacture of capacitors by two units and carrying out trading of these manufactured goods through an entity of the manufacturer affording the option of disposal without proper accountal to be plausible. However, such an allegation is sustainable only on the basis of records which can be deciphered and collated with credibility. The principal ground of appeal is that the entire case of illicit clearance against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Rules, 2002 even if confiscation of goods had not been proposed in the show cause notice. Likewise, the decision of the Hon'ble Supreme Court affirming the decision of the Hon'ble High Court of Allahabad in Somani Iron and Steels Ltd v. Commissioner [2011 (270) ELT 189 (All)] was cited to demonstrate that with private records of assessee having established suppression of production, the onus of evidencing that the document was wrong falls to the noticee. 8. We take note that the demand in the impugned order, contested by the assessee, relates to the sale and disposal of those capacitors which are apparently without a record of sourcing. For such a record to be relied upon, the foundation must surely lie in a record of opening st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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