TMI Blog2002 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Rules, 1944 on the ground that the appellants had clandestinely removed the excisable goods without payment of Central Excise duty. 2. Shri Bipin Garg, Advocate, appearing on behalf of the appellants submitted that the appellants are engaged in the manufacture of marble slabs/tiles classifiable under Chapter Heading 25 of the Schedule to the CETA 1985. The officers of the respondent visited the factory of the appellants on 15-10-97 and checked various records being maintained by them. The RG-1 register of the appellants was showing stock balance of finished goods as on 15-10-97 as under : 1. Irregular marble slabs 16304.53 sq. mtrs. 2. Regular marble slabs 1082.87 sq. mtrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Advocate submits that the mandatory penalty is unsustainable. He drew my attention to the show cause notice as well as the Order-in-Original and submitted that no evidence has been brought on record to prove clandestine removal. Besides, he also submitted that the stock of goods is kept in the shape of irregular slabs, area of which is calculated on the basis of maximum height, width and the length of marble block sawn. The maximum height, width and length of the block is measured before mounting the said block on the trolly for the purpose of sawing and the area calculated on the basis of the said parameters is entered in the RG-1 register as the area of the sawn irregular marble slabs at the end of the day. However, for the purpose of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mandatory penalty, he submitted that the mandatory penalty does not mean that equal amount of penalty can be imposed. In this regard, he relied on the decision in the case of M/s. Escorts JCB Ltd. reported in 2000 (118) E.L.T. 650 and submitted that it is not mandatory that in all cases, maximum penalty should be imposed. The authority has a discretion to impose lesser penalty. Learned Advocate relied on the decision in the case of M/s. UP State Sugar Corporation Ltd. reported in 2000 (117) E.L.T. 83 wherein the learned Single Member has inter-alia held that where the issue of clandestine removal is involved, the burden of proof of proving clandestine removal lies on the Department. In the present case also, it is not in dispute that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are metres of marble slabs, the volume of the blocks being determined with reference to the maximum length, width and height of the block." Even though the area is calculated on the basis of maximum height, width and length was accounted for in the RG-1 register which was removed as such at the area calculated according to the above said formula was debited in the RG-1 register. It may be submitted with stress that the formula for calculation of assessable area shown against Sl. No. 18 of the table below Notification No. 5/97-C.E., dated 1-3-97 is applicable only for the clearances of irregular shaped slabs and this formula has nothing to do and has no applicability for the purpose of accountal of irregular marble slabs in the RG-1 regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said block on the trolly and the area calculated on the basis of the said parameters is entered in the RG-1 register as the area of the sawn irregular marble slabs at the end of the day. However, for the purpose of assessment to duty at the time of clearance of such irregular marble slabs, the asssessable area is calculated as per the formula given against Sl. No. 18 of the table to Notification 5/97, dated 1-3-97 and the shortages are now attributed to these factors. The contention of the appellants is not acceptable as the entry No. 18 of the said table to Notification 5/97 which prescribes duty on irregular marble slabs also lays down that the volume of the blocks is to be determined with reference to maximum length, width and height of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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