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TMI Blog2011 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized representative had knowledge about the clandestine removal of the goods without payment of duty, penalty under Rule 26 of Central Excise Rules had been rightly imposed on them by the original adjudicating authority and setting aside of the penalty of the Commissioner(Appeals) is not correct - Decided against the assessee by reducing penalty - 2269 of 2009 (SM), 2271 of 2009 (SM) - - - Dated:- 5-5-2011 - Shri Rakesh Kumar, J. Shri Abhishek Jaju, Advocate for the respondent. Shri K.P.Singh, SDR - for the appellant. Per. Rakesh Kumar :- The respondents are manufacture of glassware (tableware/ kitchenware) chargeable to Central Excise duty. 1.1 In case of Hind Glass, their factory was visited by jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand, set aside the penalty on the ground that there is no evidence that the shortage was due to clandestine removal. Against this order of Commissioner (Appeals), the department has come in appeal challenging the setting aside of penalty on the respondent company and their authorized signatory. In respect of the department s appeal, the respondent have filed cross objection. 1.2. In the case of M/s Sun Glass Works P.Ltd., their factory was visited by the jurisdictional Central Excise officers on 1903.07 when shortage of 11,165 dozens of Glass Brinjal Pudding sets involving duty of Rs.1,54,559/- was detected and Shri Kokamal, authorised signatory of M/s Sun Glass Works P.Ltd., present on the spot, while admitting the shortage stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings of the Commissioner(Appeals) that there is no evidence of clandestine removal is incorrect, that since clandestine stands proved, penalty under section 11AC on the respondent company would be imposable and since the authorized representatives were aware of the clandestine removal, they were also liable for penalty under Rule 26 of Central Excise Rules, 2002 and that the Commissioner (Appeals) s orders setting aside the penalty are therefore incorrect. 4. Shri Abhishek Jaju, Advocate, the Ld. counsel for the respondent M/s Hind Glass, defended the impugned order by reiterating the findings of the Commissioner(Appeals) and pleaded that in this case even if shortage is treated as clandestine removal, since the entire duty has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortage of finished goods and removal without payment of duty has been admitted, no further evidence of proving clandestine removal is necessary. Commissioner(Appeals) s finding that there was no clandestine removal is, therefore, incorrect and not sustainable. Since the element for imposition of penalty under section 11AC are present, in accordance with judgement of Hon ble Supreme Court in the case of Union of India vs. Rajasthan Spinning Weaving Mills Ltd, reported in (2009) 238 ELT 3(SC), penalty under section 11AC would have to be imposed on the respondent. However, since in both the cases, the respondent has paid the duty on the goods found short, before the issue of show cause notice, and in both the cases, the option to pay re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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