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TMI Blog2010 (7) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of any variety of bars cannot differ widely - The respondent that they have individually weighed each CTD bars before entering in RG-1 register - These circumstances, the correctness of panchanama drawn on the basis of weighment taken cannot be doubted without adducing any valid reason - The Commissioner (Appeals) has held that it was practically impossible for weighing of each piece of CTD bars within 9 hrs. and 15 minutes - Such a finding is based on presumption that each piece was required to be weighed which is not warranted in the nature of the goods - Have not been shown any retraction of the statement given by the authorised signatory - The irregular maintenance of accounts by not entering correctly the quantum of goods manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal. In pursuance of the show cause notice, the original authority ordered confiscation of 103.395 MT of CTD bars valued at Rs. 17,06,017/- and 7.640 MT of scrap valued at Rs. 67,232/- but allowed the same to be redeemed on payment of fine of Rs. 4,44,000/-. He also imposed penalty of Rs. 2,17,046/- on the respondent under Rule 25 of Central Excise Rules, 2002 for violation of Rule 10 of the Central Excise Rules, 2002 [The order of the original authority relates to another party and the same is not relevant to the present proceedings]. The Commissioner (Appeals), on appeal by the party, set aside the order of confiscation and imposition of penalty. Hence the Department is in appeal. 4. Learned SDR submits that the stock taking w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such presumption was not warranted. He also submits that the alleged excess found goods were within the factory and there is no justification for confiscation as held by several decisions of the Tribunal as noted by the Commissioner (Appeals). 6. I have carefully considered the submissions from both sides. It is not disputed that the stock taking has been done in the presence of independent witnesses and in the presence of authorised signatory on 5-11-04. There has not been any representation alleging that the stock taking was not conducted properly and the claim has been made for the first time in reply to the show cause notice. It is not the case of the respondent that they are manufacturing very many varieties of CTD bars, each one ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 25(1)(b) of the Central Excise Rules, 2002. However, the finding of the original authority that the said goods were kept for clandestine removal has been rightly found to be erroneous as the same would be only a presumption. In view of the above, the order of the Commissioner (Appeals) in setting aside the order of confiscation and setting the penalty are not justified. Therefore, the order of the Commissioner (Appeals) is set aside and the order of the original authority is restored. However, considering the entire facts and circumstances of the case, some leniency in the matter of quantum of redemption fine and penalty is justified. 7. In view of the above, the appeal by the Department is partly allowed and the order of Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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