TMI Blog2002 (2) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... heir factory on 31-8-91. According to the department, the difference between the quantities of production shown in the private record (Daily Production Report) and the RG-1 register for the period 1-4-90 to 30-8-91 was clandestine production carried out with intent for clandestine removal. Therefore, by show-cause notice dated 27-3-95 invoking the extended period of limitation under the proviso to Section 11A(1) of the Act, the department demanded duty on a quantity of over 1 lakh pieces of Fluorescent Tube Lights (FTL) which was found to be the difference in quantity between the private record and the statutory register. They also proposed to impose penalty on the party. The proposals were contested. The Deputy Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner to infer that there was clandestine production on the basis of the difference of quantities shown in the private and statutory records. She also submits that in the case of Shakti Chemical Industries v. CCE [1995 (76) E.L.T. 410] cited before the Commissioner (Appeals), it was held on a similar set of facts that, in the absence of other evidence, it was not open to the departmental authorities to find clandestine removal only on the basis of a private note book resumed from the assessee's premises. The decision was wrongly distinguished by the Commissioner (Appeals). Ld. Counsel further submits that the lower appellate authority has not found on the part of the assessee any intent to evade payment of duty and, therefore, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be recorded in the RG-1 but not actually recorded. DR further submits that this admission by Balbir Singh has been justifiably applied to the quantities entered in the private record for the rest of the period also and, therefore, the finding of the departmental authorities that the quantities entered in the private records were not shown in the RG-1 and hence the same represented clandestine production cannot be faulted in any way. Ld. DR further submits that such production was not disclosed to the department and, therefore, there was suppression of facts on the part of the appellants and the extended period of limitation was correctly invoked to demand duty on the goods clandestinely produced and cleared. The DR pleads for rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel, there is no evidence of excess consumption of raw materials or excess consumption of electricity to support the allegation of excess production of over 1 lakh pieces of FTL during the material period. It has been consistently held by this Tribunal in cases involving similar facts that a mere difference in quantity of product between the RG-1 and any private record is not enough to arrive at a finding of clandestine production. The case law cited by ld. Counsel is also to this effect. I further note that, though the lower appellate authority has recorded a finding of suppression of production against the assessee, it has not found any mens rea against them. Ld. DR has relied on a decision of the Supreme Court. That is a decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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