9911796707
TMI Blog2011 (2) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... g removal of 37212.00 L.Mtrs. of finished man made fabrics were recovered along with recovery of other documents. The same were seized under Panchnama drawn on the spot. 2. The statement of Shri Mashruwala was recorded on 15.10.03 sitself, wherein he admitted having removed the finished fabrics under the cover of the said delivery challans, without entering in the Central Excise statutory record and without raising any Central Excise invoices. He also disclosed the name of merchant manufacturer as M/s Maru Synthetics and deposed that even fictitious and duplicate lot numbers were given to the fabrics received from M/s Maru Synthetics and the same were cleared without any statutory record/coverage. 3. As a follow up investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overage of Central Excise invoice, are evidences sufficient to uphold the activities of clandestine removal against the appellant. The learned advocate s contention of the demand being barred by limitation, inasmuch as the show cause notice was issued after a period of 6 months from the date of visit of the officers, cannot be appreciated inasmuch as the law on the above issue is settled against the appellant by Hon'ble Gujarat High Court in the case of M/s Neminath Fabrics as reported in 2010 (256) 369 (Guj). As such, I uphold the finding of clandestine activity and consequent confirmation of demand of duty against the appellant. 6. At this stage, the Ld.Advocate submits that the duty amount should be re-quantified by treating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be re-quantified. Learned advocate has further contended that the Original Adjudicating Authority has imposed penalty to the extent of 100% in terms of Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944. By drawing my attention to the Tribunal s decision in the case of M/s Agarwal Pharmaceuticals Vs. CCE Delhi as reported in 2002 (146) ELT 190 (Tri-Del), wherein it was held that the penalty is not sustainable for want of apportionment under Section 11AC of Central Excise Act, 1944 and Rule 173Q of erstwhile Central Excise Rules, 1944, the same were set aside. However, I find that the ratio of above decision would not apply in the present case, inasmuch as the Tribunal in the case of M/s Agarwal Pharm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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