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TMI Blog2007 (1) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. The Adjudicating Authority, in his OIO No. 28/2000, dated 28-2-2000 confirmed the duty demand and imposed penalties. He confiscated the Plant and Machinery but, gave an option to the Respondent to redeem the goods on payment of fine of Rs. 50,000/-. The Respondent approached the Commissioner (Appeals), who passed the impugned order. The Commissioner (Appeals) allowed the appeal of the respondent by setting aside the order of the Additional Commissioner. 3. Aggrieved over the impugned order, the Revenue has filed this appeal on the following grounds:- (i) It is submitted that in the present case, Sri M. Mohan Rao, Director of M/s. M.R. Plastics Polymers (P) Ltd., in his statement dated 16-2-95, When asked why certain entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Foam (P) Ltd. v. Commissioner as reported in 2000 (118) E.L.T. (A244) in Civil Appeal (D. No. 19265 of 1999), the Hon ble Supreme Court of India upheld the Tribunal Order that the charge of clandestine removal is proved on the basis of File No. 2 written in hand writing of the Director. (b) In the case of Shelu Dyeing Printing Mills v. Commissioner, Surat - 2003 (152) E.L.T. 352 (Tri.-Mumbai), the Hon ble CEGAT held that the fact that a private record has come into existence in the factory goes to show that the owner of the property or the person in whose possession the factory is there, ought to have explained the existence of the same as he is in possession of the property - Burden is on assessee and demand was conferred as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Respondent Shri K. Rajendran, urged the following points :- (i) The Commissioner (Appeals) has held that the whole case is built on the basis of some private records found at the time of visit of the Officers and the same is not corroborated by other piece of positive evidence such as excess consumption/purchase of raw materials, excess consumption of electricity, production sold without invoice, etc. (ii) There were mainly two allegations. The first one is that the appellants cleared a quantity of 10,542.36 Kgs. of the finished products to M/s. Muppaneni Dairy (P) Ltd. for the period from 11/1992 to 12/1993. This is based on Private Production Register Sl. No. 50, seized on 16-9-1994. The second allegation is that a q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. Remaining quantity of 1,542.36 Kgs. is remade goods. (iv) The removal mentioned in Annexures II III of the Show Cause Notice cannot be sustained as the Show Cause Notice itself admits that the supplies were presumably made to Govt., undertakings, which do not entertain goods without duty paying documents. Moreover, the allegations are based on Private Production Registers maintained by the appellants. There are duty paying documents for the clearances that are made out of the production found in the Private Production Registers which were net correlated but explained through separate statements. (v) The Reconciliation Statements supported by the clearance documents like GP1, etc. were not looked into by the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Chemicals Ltd. v. CCE, Hyderabad - 2005 (191) E.L.T. 1062 (T) 6. We have gone through the records of the case carefully. The Show Cause Notice issued appears to contain 3 Annexures. However, Revenue, when they filed the Paper Book, have enclosed the Show Cause Notice dated 4-10-1995 without any annexures. The copy of Show Cause Notice is very illegible in feeble print. We have to strain our eyes to a great extent before deciphering the contents of the said Show Cause Notice. The OIO has not discussed the so called clandestine removal with reference to each of the 3 annexures. With regard to the quantity of 10,542.36 Kgs. in Annexure-I, it is the contention of the respondent that this quantity is out of the rejected goods. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding by the Adjudicating Authority. While the Show Cause Notice is a 14 page document, the finding of the Adjudicating Authority is in just 3 short paragraphs. The facts, the evidences and the submissions of the Respondent have not been properly brought out by the Adjudicating Authority. The investigation is also not thorough. In these circumstances, we have to set aside the rest of the demands in Annexures II and III. 6.2 Since Shri Mohan Rao was the Director, looking after the routine work of the company, the penalty on him under Rule 209A is justified. However, in the facts and circumstances of the case, the same is reduced as given below. 6.3 The OIO is modified in the following manner :- (i) The penalty under Rule 173Q is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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