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TMI Blog2012 (8) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in this regard - assessee is not entitled for any benefit of the credit balance available in RG 23A Part II Register inasmuch as in the present case, on the basis of the seized private records, the suppression of production was detected - in favour of the revenue. - 1 of 2004 - - - Dated:- 22-2-2011 - Yatindra Singh and Rajes Kumar, JJ. REPRESENTED BY : Shri Pankaj Bhatia, Counsel, for the Appellant. S/Shri B.K. Raghuvanshi, B.N. Singh and Shambhu Chopra, Counsels, for the Respondent. [Judgment per : Rajes Kumar, J.]. This is a Central Excise Reference arising out from the order of the Tribunal dated 22-8-2004. 2. At the instance of the assessee, this Court has directed the Tribunal to draw the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluding August, 1995. On verification, it was found that in RG-I Register, only 15,250 pipes were recorded, as manufactured goods, whereas the actual production, as per private records, was 93815 pipes. On the basis of the aforesaid discrepancy, it was found that the assessee had suppressed the production of 43565 pipes, valuing at Rs. 1,22,45,416/- evading Central Excise Duty amounting to Rs. 24,49,083/- by the aforesaid suppression of production for the period 10th March, 1995 to 31st December, 1995. The adjudicating authority has also estimated the suppressed production of PVC pipes valuing at Rs. 1,54,55,123/- involving Central Excise Duty of Rs. 30,91,025/- for the period April, 1994 to March, 1995 and August, 1995. It was also foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order, the assessee filed the appeal before the Custom, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal). 7. The Tribunal by the impugned order allowed the appeal in part. The Tribunal has confirmed the demand of Rs. 24,49,083/-, which relates to the period 10th March, 1995 to 31st December, 1995, except for the period August, 1995 and has set aside the demand of Rs. 30,91,025/- relating to the period April, 1994 to March, 1995 and August, 1995 on the ground that for the period April, 1994 to March, 1995 and August, 1995, the private record was not found and the demand has been raised merely on presumption. The Tribunal has also confirmed the dis-allowance of modvat credit for Rs. 6,83, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have said that this also supports the contention that the diaries show that 60 parts of calcium carbonate was being used. Since this demand is based on the private records maintained by the assessee, we uphold this demand of Rs. 24,49,083/- for the period 10-3-95 to 31-12-95 except August, 1995. We also not that private records were not given a go-bye. 16. Insofar as the demand of Rs. 30,91,025/- for the period April, 1994 to March, 1995 and August, 1995 is concerned, we find that the appellants produced the evidence in the form of inspection report by CIPET itself an apex agency in the particular field. We also note that the department is contending that the applicants produced more pipes. However, we note that it is indicated nowhere t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are the finished products. We further note that the Commissioner has given an option to the assessee to redeem the confiscated goods on payment of fine of Rs. l lakh. Looking to the value of the goods including the finished goods, we find that the redemption fine is not out of all proportion. On the question that the penalty on the appellant s firm is very much higher. We find that the penalty of Rs. 10 lakh has been imposed on the company Since we have held that only demand of Rs. 24,49,083/- is sustainable in law. We, therefore reduce the penalty to Rs. 5 lakhs on the company. 13. Section 11A of the Act along with the proviso reads as follows :- Section 11A - Recovery of duties not levied or not paid or short-levied or short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty for the period of five years from the relevant date. 14. In the present case, on the facts and circumstances, proviso has been invoked on the allegation that there was wilful misstatement or suppression of facts with intent to evade the payment of duty. 15. The question for consideration is whether on the facts and circumstances, the revenue is able to make out a case under the proviso of Section 11A(1) of the Act. 16. In the present case, at the time of the search, private records were found. The assessee is not able to make out a case that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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