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TMI Blog2010 (1) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... g that extended period has been correctly invoked - without investigation and without completing investigation, show cause notice invoking extended period could not have been issued - It is made clear that failure to pay any of the three amounts within 30 days from the date of receipt of this order would result in enhancement of penalty to 100% of the duty demanded - E/824/2009 - A/1702/2010-WZB/AHD - Dated:- 1-10-2010 - Shri B.S.V. Murthy, JJ REPRESENTED BY : Shri S.S. Srivastava, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order] . - The appellant is engaged in the manufacture of Texturised Polyester Filament Yarn. Appellant s factory was searched by the Central Excise Officers on 30-1-1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery challans as well as the carton number of the goods have been mentioned and there are no findings that this was not so. The department has relied upon the statement of authorized signatory and the date of the challans to hold that goods have been cleared without payment of duty. He also submits that during the cross examination, Superintendent concerned could not explain non availability of date in the copy of challans available with the assessee and availability of date on the challans with the department to the show cause notices. There is no finding that copies of the challans available with the assessees did not have dates. 4. As regards worksheet No. 2, he submits that the department s case is that the goods were cleared und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notices. The first worksheet relates to 33 challans for which, according to the Revenue, there are no corresponding invoices. The appellant s claim is that challans copies available with them show that no date was being mentioned by the appellants on the challans. It is also their submission that the department after seizing the record had added the dates in the challans and for this purpose cross-examination of the Superintendent was conducted. However, Superintendent stated that he was not a hand writing expert and he was not in a position to comment as to whether the dates in the delivery challans were written in the different hand writings and with different inks. Commissioner has observed in his order that challans have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any such documentary evidence, the demand of duty covered by the worksheet-1 amounting to Rs. 1,69,683 cannot be sustained. 8. As regards worksheet No. 2, the worksheet lists seven consignments which were removed under parallel set of invoices. There is no dispute that these invoices were issued from parallel set of invoices. There is no dispute that parallel invoice book has been recovered from the appellant s premises. Authorised signatory admitted removal of goods under these invoices without payment of duty. Transporters admitted transport of goods without invoices and under the delivery challans only. Further, the defence advanced by the appellant is that department has not conducted any verification at the buyers end, receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rejection are for non availability of dates on the LRs. Further, the fact that carton numbers in the invoice tally with the delivery challans and LRs has been totally ignored. Only two LRs have overwritten numbers. Otherwise there is no discrepancy in the LRs. As admitted by the Supervisor of the transporter company the LR book was kept with the appellant themselves. This is confirmed by the fact that signatures on the LR as well as on the delivery challans appear to have been made by the same person. This also explains how the office copy of the LR was found with the appellant. Further, it has also come out from the records that the appellants used to fill up LRs and request the transporter to send the truck. Even though, such a claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be sustained. In view of the above position, penalty under Section 11AC of the Act is imposable and interest under Section 11AB of the Act is payable. However, even though penalty has been imposed by the lower authorities, option to make the payment of duty penalty, and interest within 30 days thereby reducing the penalty to 25% of the duty has not been indicated in the orders passed by the lower authorities. Therefore, in view of the Tribunal decision in the case of M/s. Swati Chemicals Industries Others - 2009 (94) RLT 684 (CESTAT) = 2009 (248) E.L.T. 421 (Tribunal), such an option is required to be extended. Therefore, while confirming the penalty of Rs. 1,45,671/-, as penalty imposed under Section 11AC of Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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