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TMI Blog2013 (11) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act - This is to be understood to mean that where section 11AC is applicable provisions of section 11AC will apply and not provisions of Rule 25 - This is a case of clandestine removal which is held to be proved – Thus penalty under section 11AC is sustainable - the amount demanded has already been appropriated from the Security Deposit made - it is proper that the penalty is reduced to 25% of the differential duty involved – Decided partially in favour of Assessee. - E/280/2012 - - - Dated:- 17-9-2013 - Shri Mathew John, J. For the Appellant: Shri M. Kannan, Adv. For the Respondent: Shri P. Arul, Supdt.-AR JUDGEMENT Per Mathew John: The appellant is a manufacturer of safety matches. 2. When the officers of the Tirunelveli Commissionerate conducted road checks on 25-09-2009, they found 1194 bundles of safety matches belonging to the appellants being transported in a vehicle bearing registration No. TN 72 C 8677 under a delivery-cum-gate pass No. 110 dated 25-09-09 issued by M/s. Suriyan Matches, Karadikulum. Since the above document did not indicate any sort of accounting for the purpose of payment of excise duty, the goods along with veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.09.2009 200 37 15.09.2009 200 39 15.09.2009 200 40 15.09.2009 100 Total 4081 6. On a scrutiny of the appellant s RG-1 and Stock Register with documents seized from M/s. Suriyan Match Works, Karadikulam, it is noticed that there is no entry of receipt of bundles from M/s. Suriyan Match Works, Karadikulam except 196 bundles received on 27.07.2009. Hence, it appeared that the appellants had clandestinely removed (4081-196) = 3885 bundles of matches received without payment of appropriate excise duty. Revenue issued a Show Cause Notice demanding duty on 3885 bundles of matches short accounted by appellant and 1194 bundles of safety matches seized on 25-09-2009. Thus, duty amounting to Rs.83,702/- demanded on the goods which were seen to be returned by job-worker but not accounted by the appellant and duty amount of Rs.19,766/- was demanded on the seized goods. After due proceedings, the above demands were confirmed against the appellant along with interest under Section 11AB. Further, the 1194 bundles of safety matches were confiscated to be released on payment of a fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 4 Quantity of match splints lying at job worker as admitted by Department 584 5 Total 9299 9311 Difference = 12Kgs 10. Thus, the learned counsel submits that the entire disputed quantity of raw material namely dipped splints cleared to Suriyan Match Works and Matches returned by them are accounted properly and there is no differential duty to be paid by the appellant. 11. The next argument is that the 1194 bundles sized by the officers were dispatched by the job worker to the appellant (as the original challans were misplaced) under delivery-cum-gate passes, as the original challans have been misplaced and could not be traced out. They argued that the delivery-cum-gate pass bearing no.110, dated 25.09.2009 issued by the job worker M/s. Suriyan Match Works will reveal that the goods were cleared on transport documents with intention to account and clear on payment of duty. Therefore, he submits that the confiscation and redemption fine is not warranted. He further argues that the total demand of Rs.83,702/- includes the demand of duty of Rs.19,776/- on sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no payment by cash which could have established their claim. Though payment through Cenvat account is valid payment in the facts of the case it can be seen that these are only manipulated entries. So he prays that the impugned order should be sustained. Further he also points out that for release of the vehicle on provisional basis the appellant executed the bond and now they are submitting that the owner is somebody else and that person has not been put on notice. He submits that this argument is not maintainable after they themselves held out to be owner of the vehicle. 14. Considered the arguments on both sides. On an assessment of the various statements and records as are available, I agree with the contention of the learned Authorized Representative for the Revenue that the defense now being raised is based on the register which was not available at during investigation which leads to the inevitable conclusion that the these are created just for defending the case. These documents cannot be accepted as a bonafide records based on which relief can be granted. However, I agree with the argument of the appellant that the seized bundles can be considered only as part of goods p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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