9911796707
TMI Blog2005 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the subject matter of the appeal has since fallen within the jurisdiction of the Commissioner of Central Excise, Salem. 2. The relevant facts of the case, briefly stated, are as under : The appellants were dealing in Tobacco during the material period. Unmanufactured/unbranded tobacco was exempt from duty of excise during that period. The period of dispute in this case is 1-8-95 to 14-6-96. On 14-6-96, officers of Central Excise intercepted a vehicle which was carrying branded tobacco from the appellants' factory. 21 bags of the product valued at Rs. 12,100/- were seized from the vehicle. In a subsequent visit by the officers to the factory, an excess stock of 29 bags of branded tobacco along with 54 bags of cut tobacco, toge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the department to recover this amount of duty from the appellants as also to penalize them on the alleged ground of clandestine removal of excisable goods. The allegations in the SCN were denied and the proposals contained therein were contested. In adjudication of the disputes, the Commissioner of Central Excise confirmed the above demand of duty under Rule 9(2) of the Central Excise Rules, 1944 read with the proviso to Section 11A(1) and Section 11A(2) of the Central Excise Act and imposed a penalty of equal amount on them under Section 11AC and Rule 173Q apart from imposing redemption fines in lieu of confiscation of the seized goods. Hence the present appeal. 3. Heard both sides. Ld. counsel for the appellants submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable in law in view of Tribunal's Final Order No. 1028/2002, dated 13-9-2002 in Appeal No. E/185/97 [Alagappa Cements (P) Ltd. v. C.C.E., Trichy [2002 (148) E.L.T. 1220 (T)]. Ld. Counsel has also cited the Supreme Court's judgment in Commissioner v. Elgi Equipments Ltd., 2001 (128) E.L.T. 52 (S.C.) in support of his argument in relation to penalty under Section 11AC. 4. Ld. DR reiterates the findings of the Commissioner and submits that the case law cited by ld. Counsel with regard to evidentiary value of private note books is not applicable to the facts of this case inasmuch as the entries contained in the note book recovered from the appellants were largely corroborated by Sri Gounder. 5. After giving careful considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to force vide Apex Court's judgment in Elgi Equipments (supra). Further, a composite penalty under two or more independent penal provisions of law cannot be accepted without the requisite split-up. In the circumstances, penalty on the appellants cannot be sustained. As regards redemption fines, we have not found any valid challenge in the appeal. 6. In the result, it is ordered as under: - (a) The demand of duty is set aside and ld. Commissioner is directed to re-quantify the duty recoverable from the assessee in terms of this order, after giving them a reasonable opportunity of being heard. He may also examine the question whether any penalty is imposable on the party under Rule 173Q and, if so, to what extent. (b) The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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