2008 (11) TMI 554

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....entioned on the recovered invoices were different from these details as mentioned in the sale invoices of the same number on record. The total duty on the goods covered by these invoices was Rs. 3,06,538/-. On enquiry with the partner of the Appellant, they could not give any explanation at that time and they promised to deposit the duty which was deposited on 20-7-01. However, subsequently the Revenue issued a show cause notice on 28-1-05 for demand of interest under Section 11AB and imposition of penalty under Section 11AC. The jurisdictional Asstt. Commissioner vide order-in-original dt. 29-12-05 rejecting the Appellant's contention that there is no evidence of clandestine removal of the goods against the parallel invoices, confirmed the....

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....ide the order of imposition of penalty and demand of interest on the ground that since entire duty had been paid before the issue of SCN, no penalty is imposable under Section 11AC and no interest is chargeable under Section 11AB, that since the Commissioner (Appeals)'s order was not challenged the order by the respondent, the duty demand cannot be challenged at this stage and that once it is accepted that the goods had been clandestinely cleared against 11 parallel invoices without payment of duty, the interest on duty under Section 11AB and Penalty under Section 11AC would be automatically attracted. He also cited the Punjab & Haryana High Court's judgment in the case of CCE, Ludhiana v. Omkar Steel Tubes (P) Ltd. reported in 2008 (221) E....

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....er. He also pleaded that though it was pleaded before the Commissioner (Appeals) that the allegation of clandestine removal has been made without any concrete evidence in this, regard, the Commissioner (Appeals) has not given any finding on this plea. He also cited the Tribunal's judgment in the case of CCE, Shillong v. Shree Narottam Udyog (P) Ltd. reported in 2003 (158) E.L.T. 40 wherein it was held that charge of clandestine removal, being a serious charge, as required to be proved beyond doubt on the basis of affirmative evidence. 3. I have carefully considered the submissions from both the sides. I find that the allegation is based on eleven parallel invoices which were recovered from the factory premises on 19-7-01 and respond....