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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 ..... 6. I direct them to pay the 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 confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced to the extent of the said fine amount. 7. Under Rule 173Q of the Central Excise Rules, 1944, I hold 19,304 Lmtr of processed fabrics valued at Rs. 3,28,168/- manufactured 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 fif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of penalty of Rs. one crore under Rule 173Q, in sub-para 8 of Para 209, he submits that as the total duty to be confirmed in the matter is only Rs. 3,16,037/-, the penalty can be restricted to 10% of the said amount which works out to Rs. 30,000/-. He contests the confirmation of penalties under Rule 209A in terms of sub-para 9 of Para 209 and submits that all the penalties imposed on the Managing Partner, and 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing pertaining to the said entries. This is not a reliable document on which the conclusion can be based that the appellants had manufactured and cleared such huge quantities of processed fabrics. The main contention of the appellant is that from December, 1998, the appellants have been paying duty on the basis of their annual capacity determined by the Department in terms of the Hot Air Stenter Independent Textile Processors Annual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be set aside, as appellants have established through records that they have not manufactured and cleared to such an extent of processed fabrics and sold the same without payment of duty. 5. In so far as the confirmation of demands in sub-para 3 of Para 209 is concerned the appellants have shown that the duty liability is only 2.10 lakhs and have conceded the same. The redemption fine of Rs. 5 lakhs is too excessive and therefore 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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