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TMI Blog2009 (1) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... f adjudication process excise and customs duty total aggregated to Rs. 16,99,92,134/- has been demanded with interest, a penalty of Rs. 4 Crores under Central Excise Rules and penalty of Rs. 4.15 Crores under Section 112 of Customs Act has also been imposed. Further, indigenous polyester yarn of Rs. 21,44,69,854/- removed clandestine also had been confiscated and redemption fine of Rs. 5 Crore in lieu of confiscation have been imposed. Further non-available raw material valued more than Rs. 17.7 Crores that has also been confiscated and redemption of Rs. 4 Crores has been imposed. In addition, penalties have been imposed under Rule 26 on remaining 22 parties involved in the case. 2. Shri Willingdon Christian, ld. Advocate on behalf of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the factory has been taken possession of by the Bank of Maharashtra to recover the loan of Rs. 2.87 Crores. He also submits that all the units as well as individuals have no financial resources to pay such a substantial amount demanded as duty and penalties etc. and therefore, requests for full waiver of pre-deposit and penalties and hearing the appeal. Shri M.N. Saiyed, Consultant on behalf of the job worker Laxmi Textiles submits that job worker was nowhere involved and reality was that the factory was leased out to PPL and they were not aware of what was done by PPL. He submits that nearly 70% of goods were sent for job work to Laxmi Textiles since all the machinery was leased out, they had nothing to do with evasion of duty or acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne is there to search the records and the factory is taken over by the Bank. He also points out that it is strange that the records kept in the registered office of the appellant i.e. PPL situated on the second floor lost in the flood, flood water by no way could cause damage to records on second floor. 3. We have considered the submissions made by both the sides. 3.1 We find that the case of the Revenue is not merely based on the capacity of production and statements of the appellants but fully supported by the statements of the job workers as well as receivers of the diverted goods. As regards non-availability of documents, Commissioner has dealt with the same in his order and from the correspondence with the DGCEI and the observation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the officers which would show that they had verified the receipts by physical supervision is not correct since physical verification has been discontinued long time back and therefore the certificates have been issued based on the declaration. Similarly, even though the appellants contested that their capacity of production was supported by the Chartered Engineer certificate, the same was not produced before the Commissioner. None of the job workers have denied their statements and all of them have reiterated the same facts in their defence reply wherein they had admitted that they had leased out their factory to PPL. Further, some of the job workers were non-existent and department could not locate them at all. Further some of the 100% E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not there, the result would have been a profit of Rs. 1.37 Crore. It is also noticed that no convincing reasons about decrease in value of stock has been provided. There is also no indication that any amount has been realized from the sundry debtors which were considered to be unsecured but good by the management. Thus, from the audited accounts of the company it appears to us that substantial resources are at their command and they can definitely make some payment towards pre-deposit and they are not as helpless as made out by the CA. Besides the amount which the appellants have earned by diverting the raw material, which were procured duty free are not reflected in accounts and these factors also to be considered. Taking all these fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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