TaxTMI 
TaxTMI 
2005 (4) TMI 523
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....being transported without cover of proper Central Excise duty paid documents. The truck along with the firework was consequently seized by the department. In follow up action the appellants' factory premises as well as office were searched where incriminating private documents viz. 52 packing slips and one depot invoice concealed in isolated place of the office premises relating to clandestine removal of the goods for the period December, 1996 to December, 1997 were found. On the scrutiny it was found that these packing slips contained all the relevant details regarding description, consignee name, vehicle No. etc. but the assessee was unable to produce the corresponding duty paying documents. The total value of firework involved in these 5....
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....nts under Section 11AC, Rule 173Q read with 209A and also demanded interest under Section 11AB. The matter was finally adjudicated by the Commissioner who confirmed the entire duty demand, confiscated the seized goods and the truck and imposed penalty of equivalent amount under Section 11AC on the appellants' company and a penalty of Rs. 25,000/- under Rule 173Q and also imposed a penalty of Rs. 1 Lakh on its partner. 5. The learned Advocate for the appellants submitted that in so far as the seized goods are concerned they are not seriously contesting the issue though they maintain that the goods were duty paid and duly accounted for in the income tax/sales tax return. 6. So far as demand of duty amounting to Rs. 21,17,848/-....
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....the, however, submitted that clandestine removal cannot be held against them merely on the basis of statement of the partner unless it is corroborated by some other evidence like receipt of goods by the consignees, transport of material by the transporter and cited certain C.E.S.T.A.T. decisions reported at 2004 (178) E.L.T. 792 (Tri.-Del.) in the case of Jagatpal Prem Chand Ltd. v. C.C.E., Delhi-I, 2003 (152) E.L.T. 69 (Tri.-Del.) in the case of Arora Products v. Commissioner of C. Ex., Jaipur, 2002 (150) E.L.T. 801 (Tri.-Mumbai) in the case of C.C.E., Ahmedabad v. Vivek Dyechem Industries Pvt. Ltd. - 2004 (168) E.L.T. 310 (Bom.) in the case of Phoenix Mills Ltd. v Union of India. 7. As far as shortages in finished goods stock invo....
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....8,65,317/- the raw material consumption would be Rs. 1,28,80,524/-. Therefore, it was not possible for them to remove clandestinely finished goods valued at Rs. 1.36 Crores from the factory premises. 10. As regards penalty it was submitted that penalty under Section 11AC is not mandatory as has been held in a number of decisions and since no clandestine clearances have been effected the penalty is not imposable at all. 11. The learned S.D.R. submits that the appellants have admitted clandestine removal in respect of the goods loaded on the truck intercepted by the preventive officers involving duty of Rs. 34,308/- and their plea that the goods were loaded from duty paid godown is not correct as the driver in his statement ha....
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....tablishes the guilt and no further enquiry was needed from the consignees etc. The packing slips indicate the Vehicle No. also and therefore the goods have to be presumed as having been delivered. Further, the goods relating to the packing slips were not available in the factory and also not in godown and this fact has not been controverted by the appellants in their appeal. It was accordingly submitted that there was no flaw in the Commissioner's order demanding duty in respect of goods relating to these packing slips. 13. As regards lorry receipts the statement of the partner to this effect was recorded in June, 1998 i.e. after six months of the seizure and here also the partner clearly admitted that the goods have been removed wi....
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....ber of worker and the value of production is with regard to the recorded production from which it cannot be inferred that no extra production could have been undertaken as in that case the raw material will also not be accounted for. The plea regarding cancellation of order could have easily been taken during the course of investigation when statements were recorded and the matter could have been verified. The Commissioner in his finding has stated that the goods corresponding to the packing slip and lorry receipt were not found either in factory premises or the duty paid godown and the appellants have not taken any objection to the same in their written submission. Besides, we find that the conduct of the appellants has been fraudulent in ....