TaxTMI 
TaxTMI 
2019 (4) TMI 638
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....ticee No. 1 in terms of Section 11AC of the Act read with Section 25 of the Central Excise Rules, 2002 (for short, 'Rules'). In addition to above, a personal penalty of Rs. 50 lakhs was also imposed on Noticee No. 2 under Rule 26 (1) of Rules, 2002 for his involvement in clandestine removal of goods for the shortage noticed during stock taking. 3. The fact of the case is that in pursuance to an information collected and developed by the officers of DGCEI, Kolkata that the appellant No. 1 were evading the Central Excise duty by way of wilful suppression of production and removal of finished excisable goods i.e. MS ingots falling under Chapter 72 of the First schedule to Central Excise Tariff Act, 1985, without proper accountal thereof and without payment of applicable Central Excise duty. Simultaneous searches were conducted on 19.2.2010 at the factory premises of the appellant located at Durgapur, West Bengal and office premises of M/s Shiv Shakti Sponge Ltd., Kolkata. The searches were also conducted on the residential premises of Shri Rajendra Kumar Mishra,, General Manager (Finance) and authorised representative located at Durgapur and office premises of M/s Tirupati Transport ....
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....udicating authority has reproduced the statement given by Shri Vivekanand Tiwari (the Partner, Shivam Transport Agency) that they had one worked with company till June, 2008 and after that they did not transport any of finished goods of appellant. The appellant's Advocate submitted that the demand for the clearance and removal has been confirmed for the period May 2008 to Feb. 2010, therefore, reliance on the statement of Shri Tiwari to confirm the demand of clandestine removal of the excisable goods after June 2008 to Feb. 2008 is not maintainable is liable to be set aside on this ground alone. 5.1 The ld. Adjudicating authority in his order has also reproduced the content of the impugned show cause notice but failed to discuss the contentions made in the reply regarding the allegation of duty involvement on unaccounted sale of finished goods without payment of Central Excise duty. The case related to the allegation of manufacture and clearance of MS billet from the factory to the various parties based on the seized File No. 01/Amit/RKMRES/ DUR/10 to quantify the demand. It is alleged that at page 257, which related to the statement of transportation of finished goods from their ....
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.... which is as under: "6. In this case allegation of clandestine removal is made against the appellant on the basis of the ledger record of the transporter. In fact when the transporter is transporting the goods, the transporter is required to issue the goods transportation receipt and on the basis of this receipt the ledger account is prepared. Revenue has failed to produce the goods transportation receipt to establish their charge of clandestine removal of the goods by the appellant. In the absence of any corroborative evidence, benefit of doubt goes in favour of the appellant. In these circumstances, I hold that Revenue has failed to prove their case. Therefore, demand confirmed against the appellant is not sustainable. Accordingly, the penalties on both the appellants are not imposable." In this case, "the allegation of clandestine removal is made against the appellant on the basis of ledger record of transporter. In fact, when the transporter is transporting the goods, he is required to issue the goods transportation receipt on the basis of which the ledger account is prepared. Revenue has failed to produce the goods transport and receipt to establish their charge of clandesti....
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....impugned Order in respect of the demand confirmed and the penalty imposed by the lower authority. However, the demand confirmed is Rs. 2,38,647.00 whereas the penalty imposed is Rs. 2,41,571.00 under Section 11AC of the Central Excise Act. Therefore, the penalty is reduced to Rs. 2,38,647.00 (Rupees two lakhs thirty-eight thousand six hundred and forty-seven). The impugned Order is modified to that extent only. The appeal is otherwise dismissed." 5.6 In the present case therefore, the facts are different from the above cited decision as the shortage in this case was found at the time of visit of Revenue officer and had been admitted by the proprietor of the appellant firm who agree to pay the duty also. The private records were systematically maintained in this case in regard to date wise clearance of the goods, name of the customer, invoice bill number and also amounts received from the customer. The statement made by the proprietor were not also retracted. Therefore, the ratio of the decision relied upon by the appellant is not applicable to the fact of the present case. 6. It was also submitted that in case of M/s MR Tobacco Pvt. Ltd (supra) relied upon by the Revenue, the Hon....
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....that the entire show cause notice is based on the stock taking report and the various statements recorded from the Authorised Representative, Transporter and Director of the appellant company. It is seen that the Authorised Representative has accepted the shortage of the goods found in the factory but not the clandestine removal of goods without payment of duty. His statement is thus not conclusive to prove clandestine removal. In the show cause notice as well as in the impugned order, there is no concrete and tangible evidence in support of such a huge quantity of finished goods presume to have been cleared without payment of duty from the appellant factory during the relevant period (May 15, 2008 to Feb, 18, 2010). For receiving such a huge quantity of raw material and for sending out such a huge quantity of finished goods and raw materials, number of transporters are required to be engaged. There is no evidence regarding any movement of goods by trucks or any other means to and from the factory of the appellant. No adequate enquiry or investigation from the transporter was carried out by the department. It is also on record that the department has got the complete address of mos....