1990 (2) TMI 163

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.... firm and therefore, it was held that these bags were kept for removal surreptitiously as it was found that an entry had been made in respect of manufacture of 97 bags in the daily production register and R.G.1 register and that as per the earlier entry of manufacture of 97 bags they must have already been removed and the present 97 bags physically available would not be the same as those entered in the R.G.1 register. 2. The Deputy Collector had come to the conclusion that inasmuch as the serial numbers were entered in the R.G.1 register the 97 bags should have already been packed and stitched with the above serial numbers and as the 97 bags were still not stamped and some of them not even stitched they were not relatable to the entries a....

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....n proved as indicated in the show cause notice and the orders of the lower authority. He has made the following citations in favour of his contention - (1) 1987 (31) E.L.T. 229 CCE, Patna v. Harinagar Sugar Mills "Penalty - When show cause notice shows no demand of duty and there is no evidence of unauthorised or clandestine removal of goods penalty under Rule 9(2) or Rule 173Q not imposable." (2) 1988 (37) E.L.T. 603 (Tri.) = 1989 (23) ECR 608 CC&CE, Pune v. Pawar Trading Co. "…. initial burden of establishing the clandestine removal is on the department and it is only after the department discharges that burden the onus shift to the party to rebut the same, etc." 4. Miss Renuka Mann, learned SDR in reply states that in view of....

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....ve been kept for clandestine removal. In this respect it is seen that the appellant has stated that he was assigning the numbers in the daily production register and making entries in the R.G.1 register and the serial numbers are stamped before the removal and also the stamping could not be done in view of the circumstance of the proprietor having to leave for Delhi due to the demise of his mother. The Collector (Appeals) has already taken note of the fact that Rule 51 provides for making such marking as soon as practicable after the goods are packed or otherwise made ready for removal from the factory, therefore, the allegation that because entries bad been made in the R.G.1 register on full manufacture of the goods, the failure to mark th....