TMI Blog2017 (8) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the charge of clandestine removal. I am unable to accept the contention of ld.Counsel for the reason that the appellant cannot accept the evidence of note books partly, unless it has submitted a statement of reconciliation of the said notebook. In the present case, the appellant failed to reconcile the entries in the notebooks and therefore, the demand of duty on the balance quantity, shortage of unbranded and unbaked Biris is justified. The appellant had not placed any reconciliation of the entries in the notebooks with the statutory records. The ld.Counsel had not disputed the recovery of the notebooks from the premises of the assessee. It has also not disputed the corroboration of the entries of the note book and in the aeized private packing serial register. Therefore, the contention of the ld.Counsel is without any force on this ground also. Penalty u/s 11AC - Held that: - the appellant accepted partly the shortage of unbranded/unbaked Biris by way of adjustment of excess labeled Biris based on the notebooks and rough private books. They cannot deny the demand of duty on the balance quantity on the basis of the same evidence, as they fail to clarify the details of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the arguments. The main contention of the ld.Consultant is that stock verification had not been undertaken properly and in the absence of any responsible person available in the factory, no representative was present at the time of stock verification. Further, the alleged excess unlabelled packed Biris of 49,26,500 sticks were manufactured out of the unbaked Biris found short to the tune of 1,42,48,000 sticks. It is also contended that Kuchcha Biris were received from two contractors. It is further contended that inspite of the statement of Shri Rabindra Nath Das and Shri Joydev Sutradhar, no statement was recovered from Shri Jyotirmoy Das or his father Shri Arun Das. No statement was also recorded from the contractors Shri Akhil Das and Shri Kamal Chandra Dey. It is further contended that merely on the basis of the entries in the note book, the charge of clandestine removal cannot be leveled. The notebooks were maintained by Shri Jyotirmoy Das and his friend in their individual capacity as stated by Shri Rabindra Nath Das, partner of the appellant firm. It is categorically submitted that the onus lies with the department to establish the charge of clandestine removal. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.33,71,238.00 I find that the Tribnal in its earlier order upheld the demand of duty of ₹ 21,000/- as mentioned in sl.No.1 of the above table. In de novo adjudication, the adjudicating authority confirmed the balance portion of the demand i.e. sl.No.2 to 6 of the table. The ld.Counsel strongly contended that the stock verification had not been undertaken properly. The Tribunal in earlier order upheld the demand of duty on the shortage of labeled biris as ascertained during the stock verification which was accepted by the assessee as no appeal was filed by them. Hence, the ld.Counsel cannot dispute the balance portion of the shortage and excess as ascertained on the ground that the stock verification had not been undertaken properly. I find that Shri Arun Kr. Das, partner of the assessee firm was present at the factory and also recorded the statement dated 26.03.1999 during stock verification. It is seen that on 26.03.1999, Shri Arun Kr. Das, Partner of the assessee and Shri Joydeep Sutradhar, Manager of the assessee signed the stock verification reports. Therfore, I do not find any force in the submission of the ld.Counsel that the stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/99 recovered from the assessee have been recognized by Sri R.N.Das, the pivot partner of the firm as Private Packing Serial Registerof the assessee, which is actually the record of quantity of the finished goods (Biris) received from different sources on different dates and also the quantity of the said goods so dispatched/sold. (v) Date-wise study of the entries made in such 09(nine) seized Notebooks alongwith the concerned pages of the seized record No.22/M/99 showed corroboration with slight variation due to Chhataii.e. rejection of degraded quality Biri sticks as discussed earlier. (vi) The assessee could not dispute such corroboration of the entries made in the seized Notebooks and that made in the seized Private Packing Serial Register. (vii) However such receipts of Kachcha Birisfrom the said 09(nine) contractors and subsequent clearances of the same (either after processing or as such) were found not to have been reflected in their statutory Register (RG-12A) establishing the fact that such quantities of Biris were cleared by the assessee in a clandestine manner without endorsing the same in excise records with the intention to evade payment of duty thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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