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TMI Blog2012 (10) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... as meant for sale to the share holders at concessional rate and 1500 quintals has been sold as such and 1000 quintals remained, the benefit of doubt in the absence of proper investigation has to go to the assessee. As the offence has to be treated as one of procedural irregularity and penalty equal to duty was not warranted - thus in the facts and circumstances of the case, the payment of duty on the goods and non-claiming of refund of the same, penalty under Rule 25 for procedural irregularity will be sufficient and since excess sugar was lying and subsequently cleared on payment of duty, redemption fine also is not warranted. The penalty of Rs.5,000/- u/r 25 would meet the ends of justice, while upholding the demand for duty on 1000 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- equal to duty involved on the sugar found in excess was also imposed. 2. Heard both sides. 3. Ld. Advocate submitted that it was all through their stand that there was no intention to evade duty and also can be found fault with for making procedural error in the sense that instead of clearing the sugar under individual invoices to the share holders, they cleared the whole stock at one go and kept the stock in the factory which resulted in excess stock. For this procedural error, the appellant cannot be made to pay duty on the goods involved twice and visited with penalty and redemption fine. 4. Ld. A.R. submits that there is a clear finding that the appellants were not able to explain the excess stock of sugar found in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any dispute that the appellant has no business to keep the excess stock in the factory after paying the duty on the same without intimating the Department and obtaining the permission or keeping the stock elsewhere, it was necessary for the Department also to establish their case that the quantity found in the factory was, in reality, unaccounted and excess and the claim made by the appellant that it was only a procedural error and a bonafide mistake, was not correct. It was submitted by ld.A.R. that the matter may be remanded for examination of this aspect. But, I feel that when an offence case is to be made out and if shortage or excess found is explained by the assessee, it is necessary for the Department to verify the claim and record c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees not to claim the refund of duty already paid even though the appellant is eligible for the same. I find that in the facts and circumstances of the case, the payment of duty on the goods and non-claiming of refund of the same, penalty under Rule 25 for procedural irregularity will be sufficient and since excess sugar was lying and subsequently cleared on payment of duty, redemption fine also is not warranted. Having regard to the facts and circumstances discussed above and the submissions, I consider it appropriate that penalty of Rs.5,000/- (Rupees Five Thousands only) under Rule 25 on the appellant would meet the ends of justice, while upholding the demand for duty on 1000 quintals of sugar found excess during the visit of the officers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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