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TMI Blog1999 (5) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... qual to duty under Section 11AC of the Central Excise Act alongwith penalty of Rs. 10/- lakhs under Rule 173Q of the Central Excise Rules. Penalty of Rs. 5 lakhs has been imposed on each of the three Directors under the provisions of Rule 209A of the Central Excise Rules. 2. Shri K.K. Anand, ld. Advocate submits that the basis of the finding that the company is engaged in clandestine production of ordinary portland cement is certain registers recovered from the factory premises. He submits that since the entries in these registers were found to be far in excess of the entries made in the statutory records, the Department has concluded that excess quantity was manufactured and cleared without payment of duty. He submits that the regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty cannot be imposed in this case as the alleged offence took place during the period prior to introduction of this Section in the Act. Regarding the penalty under 173Q he submits that for the same offence two penalties, one under Section 11AC and another under Rule 173Q cannot be imposed. Lastly he pleads financial hardship drawing our attention to the balance sheet which showed heavy loss for the year ending 31st March, 1998. Regarding the imposition of penalty on the Directors, he submits that there is no finding on their knowledge of clandestine production and hence pleads that penalty is not imposable upon them. 3. Opposing the prayer of the Id. Counsel, ld. DR takes us to the detailed findings of the adjudicating authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primarily based on the entries in the registers in which some of the signatures have been identified as belonging to the mill hands of the applicant company and upon the statement of Shri Jain Prakash. The effect of this evidence will be considered in detail when the appeal is taken up for hearing and it cannot be said that the applicant has a strong prima facie case. Having regard to the fact that the matter is arguable, and to the financial position as reflected in the balance sheet, we are of the view that in this case the ends of justice will be secured on directing Hanumant Cement to pre-deposit a sum of Rs. 12 lakhs towards duty and one lakh towards penalty imposed under Rule 173Q within a period of eight weeks from today. We waive th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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