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TMI Blog2001 (7) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ules on M/s. Vividh Marble Pvt. Ltd. and penalty of Rs. 20,000/- on Shri Rajendra V. Sharma, Managing Director. 2. Shri Punkaj Mullick, learned Chartered Accountant, submitted that the Central Excise Officers visited the Appellant Company's factory on 7-12-1998 and on physical verification, they found 8689.53 sq. mtrs. of Marble slabs and 154.51 Mtrs. of Marble tiles short; that Note 4 to Chapter 25 of the Schedule to the Central Excise Tariff Act allows a manufacturer option to discharge duty on the irregularly shaped marble slabs by treating one cubic meter of marble block as equivalent to 30 Square meters of marble slabs, the Volume of the blocks being determined with reference to the maximum length, width and height of the block; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance thus can be placed on the Superintendent's Report. He also mentioned that the shortage in tiles works out to be 3.3% of the total stock and being a negligible percentage it is condonable under Rule 223A of the Central Excise Rules. He, further, mentioned that there is no positive evidence of removal of goods without payment of duty and, therefore, charge of clandestine removal is without any tangible evidence and is based merely on inference; that penalty under Section 11AC is not imposable as neither the proviso to Section 11A(1) was invoked nor there was any allegation in the show cause notice that the duty has not been paid by reasons of fraud, suppression, etc.; that further as there is no evasion of duty, penalty under Rule 173Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is specifically mentioned in Para 5 of the Notice that the goods have been cleared "clandestinely" and "with an intent to evade payment of duty;" that penalty is imposable on Shri Rajendra Sharma as he is looking after the day to day affair of the Appellant's factory. 4. I have considered the submissions of both the sides. The Officers on physical verification of the stock of marble slab on 7-12-1998 found the same to be 8895.78 Sq. Mtrs. whereas the balance as per RG1 Register should have been 17585.31 Sq. Mtrs. Thus the physical balance was almost 50% less than the balance shown in statutory Record-RG 1. Shri Rajendra Sharma, in his Statement recorded on the same day, nowhere mentions about the fact that they are adopting two differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise duty amounting to Rs. 2,65,321/- in contravention of the provisions of Rule 9(1), 52A, 53, 173F, 173G and 226 of the Central Excise Rules, 1944 with an intent to evade payment of duty". In view of the same, the provisions of Section 11AC have correctly been invoked and the appellants are liable to statutory penalty thereunder." All the ingredients necessary to invoke provisions of Section 11AC are present and the penalty is thus imposable on them. I, therefore, uphold the penalty imposed on the Appellant Company under Section 11AC of the Central Excise Act. I, however, set aside the penalty of Rs. 25,000/- imposed under Rule 173Q, 9(2), 52A and 226 as the interest of justice will be satisfied with the imposition of penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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