2007 (12) TMI 395

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...., a duty of Rs. 1,81,921/- stands confirmed against the appellant on the findings of clandestine removal of the goods, which in turn are based upon the shortages detected at the time of visit of the officers. In addition, he also confiscated 1,47,477 bottles of various sizes of glass and glassware with an option to redeem the same on payment of redemption fine of Rs. 50,000/- and in case of redemption to pay the duty amounting to Rs. 1,80,643/-. Personal penalty of Rs. 1,50,000/- stands imposed upon in terms of the provisions of Rule 173Q. The lands, buildings, plants and machinery also stands confiscated with an option to the appellant to redeem the same on payment of redemption fine of Rs. 25,000/-. 2. After hearing both sides, I ....

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....nch witnesses were present in the factory for around 30-40 minutes and the entire stock taking was not undertaken. Subsequently, they undertook their own stock taking and filed the same along with an affidavit of Mr. Pathak on 13-10-92. It almost took 280 hours to the appellant to complete the said physical verification. As per their own physical verification, the excess worked out to be 17,48,652 bottles as against the alleged excess of 44 lakhs bottles and the shortage was to the tune of 55,200 bottles only as against the alleged shortage of 10 lakhs bottles. Accordingly, they made a request to the Commissioner to re-verify the stock, which request was carried out and the Supdt. did the re-verification on 11-1-93. As per this, the excess ....

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.... that in any case the entire allegations are based upon the shortages noted at the time of stock verifications, apart from the fact that such number of bottles found short during the course of initial visit was subsequently revised to 62,000 bottles approx., which can be on account of number of factors like breakage of the bottles etc. There is virtually no other evidence on record to indicate that the said bottles have been cleared by the appellant without payment of duty. It is well established that the charges of clandestine removal should be based upon the positive and tangible evidences and cannot be held sustainable on the basis of assumptions and presumptions for the shortages of the bottles, irrespective of correctness of the number....