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TMI Blog2010 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that there was no material to suggest that there was any clandestine removal of the case and hence no penalty was imposed upon the respondent. M/s Mico Glass Industries Pvt. Ltd., Gurgaon is engaged in the manufacture of Safety/toughened and edged worked glass, both tinted as well as non-tinted, for automobiles and architectural purpose falling under Chapter 7003.00 and 7004.00 of the Central Excise Tariff Act, 1985. they have been availing modvat credit of duty paid on inputs under Rule 57-A of the Central Excise Rules, 1944 (for short 'the Rules'). On 15.7.1998, the officers of Central Excise (Preventive), Division-II, Gurgaon visited the premises of the factory and in the followup action and interception of a tempo in transit it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods without payment of duty. Learned counsel has submitted that while imposing the penalty upon the respondent, the period from 1.7.1998 to 15.7.1998, was taken into consideration and penalty was imposed on the entire goods. Counsel for the respondent on the other hand submits that the goods manufactured from 1.7.1998 to 15.7.1998, had not been removed out of the factory premises, although they had not been entered in the Register. Learned counsel further submits that the shortage, which was detected, was on account of wastage and non-recording of certain invoices in the Register, however, as the goods had not been removed out of the factory premises, hence, no inference can be drawn that the same was ready for clandestine removal. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the factory premises. In view of the above, we held that penalty would be levied only on those goods which had been removed clandestinely out of the factory premises of the manufacturer and no penalty would be leviable on the shortage found on stock verification and on the goods which had not yet been removed out of the factory premises of the manufacturer. Since the penalty would have to be recalculated, therefore, we set aside the impugned orders passed by the adjudicating authority, Commissioner(Appeals) and the Tribunal to the extent indicated above and remand the case back to the adjudicating authority for calculating the penalty to be imposed upon the respondent in the light of our observations made above. (ASHUTOSH MOHUNTA) JU ..... X X X X Extracts X X X X X X X X Extracts X X X X
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