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TMI Blog2005 (12) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... same amount forthwith. 2. Under Section 11A(2) of the Central Excise Act, 1944, I confirm an amount of Rs. 1,62,05,830/- (Rupees one crore sixty two lakhs five thousand eight hundred and thirty only) as the duty payable by M/s. Venkateswara Silk Mills, Gaganpahad village on the processed MMF valued at Rs. 16,20,58,297/- manufactured and cleared by them clandestinely during the period from 1-4-1995 to 31-3-1996. I direct them to pay the said amount forthwith. 3. Under Rule 173Q of the Central Excise Rules, 1944, I hold 1,61,741 Lmtr of processed fabrics valued at Rs. 26,29,223/- manufactured and cleared clandestinely by M/s. Venkateswara Silk Mills, Gaganpahad village, detained at the premises of M/s. Shakti Traders, Hyderabad, on 29-8--1996 and subsequently seized under a panchanama dated 17-9-1996, as liable for confiscation. As the said goods which were released provisionally vide HQ. CCO.OR No. 1/96-C.E., dated 18-10-1996 have not been produced before me, under Section 34 of the Central Excise Act, 1944, I impose a fine of Rs. 5 lakhs (Rupees five lakhs only) in lieu of confiscation of the said goods. The bank guarantee furnished in respect of the said goods shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured and cleared clandestinely by M/s. Venkateswara Silk Mills, Gaganpahad village seized at the premises of M/s. Aswini Textiles, Hyderabad, under a panchanama dated 24-10-1996, as liable for confiscation. As the said goods which were released provisionally vide HQ.CCO.OR No. 1/96-C.E., dated 25-10-1996 have not been produced before me, under Section 34 of the Central Excise Act, 1944, I impose a fine of Rs. 65,000/- (Rupees sixty five thousand only) in lieu of confiscation of the said goods. The bank guarantee furnished in respect of the said goods shall be enforced to the extent of the said fine amount. 8. Under Rule 173Q of the Central Excise Rules, 1944, I impose a penalty of Rs. 1 crore (Rupees one crore only) on M/s. Venkateswara Silk Mills, Gaganpahad village. 9. Under Rule 209A of the Central Excise Rules, 1944, I impose personal penalties of ; (a) Rs. 50 lakhs (Rupees fifty lakhs only) on Shri Narender Kumar Goel, Managing Partner in M/s. Venkateswara Silk Mills, Gaganpahad village; (b) Rs. 25 lakhs (Rupees twenty five lakhs only) on Shri Dharmender Kumar Agarwal, Proprietor of M/s. Shakti Traders, Hyderabad; (c) Rs. 25 lakhs (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proprietors of firms indicated therein should be set aside besides, the penalties on the Accountants of the dealers of Rs one lakhs each. He submits that in so far as sub-Para-9 (f g) of Para 209 are concerned the duty is only Rs. 78,730/- and Rs. 26,253/- respectively. Therefore penalty of Rs. one lakh each on the proprietor of the said firms is not justified and should be reduced to minimum. 3. Learned SDR reiterated the findings prayed for confirmation of demands. 4. On our careful consideration of the entire matter, our findings on each of the above confirmed demands are as follows :- (a) Confirmation of Demand of Rs. 34,47,007/- The finding recorded by the Commissioner on this amount is noted in Para 155 of his Order. The said paragraph itself notes that the duty was demanded from the appellants on the possible production of the processed fabrics from the unaccounted grey fabrics and cleared without payment of duty. He has noted that the removal of processed fabrics without payment of duty is required to be corroborated by the evidence pointing to the receipt of grey fabrics without accountal in the statutory records. After having so recorded, he has noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Capacity Determination Rules, 2000. An order was passed by the Commissioner on 31-12-1998, in terms of the said Rules, determining the annual capacity for the year 1998-1999 to an extent of Rs. 984.48 lakhs in terms of the value and the average value of production per month was determined as Rs. 82.04 lakhs. This capacity has been determined for two stenters having in all 7 chambers. On 12-4-2000 another order was passed by the Assistant Commissioner determining the average quantity of production per month to be Rs. 7 lakhs per Sq. month. In terms of the above orders, the capacity of the appellants works out to 58,98,622 Sq. meters on two stenters for a period of 12 months. (Rs. 984.48 lakhs divided by Rs. 16.69 Sq. Meters, the value adopted in the show cause notice) and 24,57,759/- Sq. meters on two stenters for a period of 5 months (working out to approximately 2.45 lakh Sq. meters per month per stenter). The appellants have produced records to show that during the period in question when these huge demands have been raised they were having only one stenter purchased in the year 1998, Their contention is that if the capacity as determined by the Department is considered as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it is reduced to Rs one lakh. As regards confiscation of 1151.40 LMtrs of processed fabrics valued at Rs. 12,700/- mentioned in sub-para 4 of Para 209, the redemption fine of Rs. 25,000/- is reduced to Rs. 1,000/-. In sub-para-5 of Para-209, the Commissioner confiscated goods which were still lying in the factory. Such confiscation is not proper as the same has not been removed from the factory. Hence the redemption fine of Rs. one lakh as imposed in sub-para 5 of Para 209 is set aside. The duty confirmed in sub-Para 6 of Para 209 is Rs. 78,730/- on value of processed fabrics of Rs. 9,84,133-. The fine of Rs. 2 lakhs is excessive. It is reduced to Rs. 5,000/-. The duty to be paid in terms of sub-para 7 of Para 209 is only Rs. 26,253/- therefore, fine of Rs. 65,000/- is reduced to Rs. 25,000/-. As the major demands have been set side, the penalty of Rs. one crore is unjustified. The total uncontested duty is Rs. 3,16,337/-, therefore, the penalty is reduced to Rs. 30,000/-. As regards penalties on various persons under Rule 209A as imposed in sub-para 9 of Para 209 is concerned, the Commissioner has not given any findings as to how these penalties are required to be imposed. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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