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TMI Blog2010 (11) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... setting aside penalty. The Commissioner (Appeals) has either not noticed the admission statements of the Director or ignored in recording the same in his order-in-appeal. On both occasions huge shortages were found and the admission by the Director that the goods would have been cleared by his staff without payment of duty is sufficient to conclude that there was clandestine removal of the goods, Department appeals are allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... and imposed equal amount of penalty on the company and Rs. 10,000/- on the Director. The Commissioner (Appeals), has set aside the penalties. 3.2 In appeal Nos. 2115-16/2008 the relevant facts are as follows :- The officers visited the above company second time on 22-8-2006, and there appeared to be improvement! This time, the officers found only 3,580 kgs. of M.S. Wire as against the stock of 23,780 kgs. as per RG-1 account and thus a shortage of 20,200 kgs. In respect of M.S. Scrap they found only 2720 kgs. as against 14,520 kgs. as per RG-1 account and thus shortage of 11,800 kgs. The value of the short found goods was Rs. 6,12,920/-. The same Director gave the same story that short found goods might have been cleared, in his abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty can be imposed on him. He also relies on the decision of the Tribunal in the case of Nirmal Inductomelt Pvt. Ltd. v. CCE, Jaipur, reported in 2010 (259) E.L.T. 243 (Tri. - Del.). He submits that the original authority has not given option to pay reduced penalty in terms of proviso to Section 11AC and he seeks that the said option may be extended in the light of the judgment of Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. v. UOI, reported in 2008 (228) E.L.T. 31 (Del.). 6. The objection of the learned Advocate that authorisation is not legal and proper though, is in the nature of preliminary objection, the same has been made very belatedly and not at the commencement of the hearing and also has been made without ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty. The Commissioner (Appeals) has either not noticed the admission statements of the Director or ignored in recording the same in his order-in-appeal. On both occasions huge shortages were found and the admission by the Director that the goods would have been cleared by his staff without payment of duty is sufficient to conclude that there was clandestine removal of the goods. It is not the case of the respondents that the Director of the respondent-company has retracted his statements. The statements have been acted upon by paying duty involved. These two are fit cases for invocation of provisions of Section 11AC. Therefore, setting aside the order of the original authority relating to imposition of penalties on the respondents wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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