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TMI Blog2005 (1) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were cleared clandestinely without payment of duty to different buyers under cover of forged invoices, and has imposed a penalty of an equivalent amount. 2. Brief facts of the case are that acting on an intelligence to the effect that the appellant company had been engaged in clandestine clearance of Aerated Waters/Flavours, the Officers of Headquarters, Anti-Evasion, Central Excise, Shillong, visited the factory premises at Guwahati, on 10-5-99 and 19-4-2000, and resumed some records from the said premises. On scrutiny of the same, it was observed that during the above period, the appellant company had supplied Aerated Waters to different dealers in the North-East in excess of production and clearance shown to the Central Excise Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Waters to the tune of Rs. 70.94 lakh. Therefore, no show cause notice was issued to them proposing recovery of Rs. 70,94,694.00 together with interest, and proposing imposition of penalty. The notice also invoked the extended period of limitation. 2.1The adjudicating authority found that the doubt that there was no record to indicate any sales particulars, as mentioned in the Sub-Ledgers of the respective buyers, corresponds to the books of account of the concerned buyers, and therefore, the statements supported by the forged invoices can only relied upon for the purposes of clandestine clearances and the duty evaded. He also dropped the allegation regarding purchase and utilisation of Concentrate for clandestine manufacture and clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been dropped by the Commissioner, and therefore, confirmation of duty on the charge of clearance on fake invoices is beyond the scope of the show cause notice; the alternative submission made before us is that even if the notice can be treated to have alleged clandestine clearance on the basis of fake invoices, the appellant company did not have sufficient opportunity to meet this charge. The prayer before is for remand of the case in order to enable them to meet this charge, particularly highlighting the aspect that during the period in dispute, the appellant company was owned, controlled, managed and run by M/s. Nagaland Beverages Pvt. Ltd. 3.1On the other hand, learned S.D.R. took us through the entire show cause notice and the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in reply to the show cause notice was any attempt made by the appellant company to deny or dispute the despatch of the goods to the customers in question. The appellant company had ample opportunity to meet this charge, but did not avail of such opportunity. The records coupled with the statements of the customers clearly establish the charge of clandestine clearance. Therefore, we see no infirmity in the Order confirming the duty-demand and accordingly, uphold the same. However, having regard to the totality of the facts and circumstances of the case, we are of the view that a lesser penalty is called for, and therefore, reduce the penalty to a sum of Rs. 5.00 lakh (Rupees five lakh). 5.The appeal is thus partly allowed as above. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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