2009 (8) TMI 1013

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....f area (DTA). Pursuant to visit to the unit on 28-6-2002, the officers of the department noticed wide variation between the figures of production of the final products recorded in the audited balance sheet for the years 1999-2000 and 2000-2001 and the statutory RT 13 returns filed for the respective years with the department. After due process, a show cause notice issued to the appellants was adjudicated by the Commissioner demanding duty of Rs. 1,31,64,837/- towards clandestine clearances along with applicable interest. The Commissioner imposed equal amount of penalty as the duty demanded on SSIL under Section 11AC of the Central Excise Act, 1944 (the Act). This Order No. 25/05-06 (RP) dated 20-10-2005 was challenged before the tribunal. V....

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....Justice' and the evidence produced by the appellants and to pass a detailed speaking order within a period of four months from the receipt of this order. Thus the appeal is allowed by way of remand for de novo consideration." The impugned order has been passed following the remand directions contained in our Final Order No. 779/2006 dated 6-4-2006. 2. Heard both sides. 3. Vide the impugned order, the demand on account of clandestine clearances has been revised to Rs. 1,00,11,651/- along with applicable interest. Equal amount of penalty has been imposed on the assessee under Section 11AC of the Act. The impugned order records the following findings in Paragraphs 20 and 24 :- "20. On a careful consideration, it is observed that the invest....

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....f the documents only after the notice was issued to them. This certainly deprived the investigating agency the opportunity of verifying the veracity and genuineness of these transactions and the evidentiary value of these documents. Further the non-submission at the time of investigation and their sudden appearance at the time of the personal hearing is too obvious to be lost sight of. No satisfactory explanation is forthcoming from the notice as to why he did not choose to produce these documents at the time of recording the statements, visits of the officers in the follow up action, etc. Thus there is a deliberate intention on the part of the notice to produce these so called evidences depicting the trading transactions to keep them insul....

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....ertainly lends credence to this inference confirming clandestine removal. I am not inclined to accept the argument selectively made by the assessee to tide over the problem taking shelter in photo-copies of certain documents without producing the originals. In fine, I hold the charges made in the show cause notice proved, albeit extending the benefit of cum-duty calculation. I also old the assessee is liable to a penalty in terms of Section 11AC of the Finance Act, 1944 (sic) and the interest in terms of Section 11AB ibid……" The demand was confirmed on a finding of clandestine clearance by the appellants. There is no finding of removal of final products clandestinely by the appellants. There is no evidence of use of excess ra....