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TMI Blog2013 (11) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... The demand of duty along with interest and penalty under Section 11AC of the Act, 1944 are upheld - As the penalty has already been imposed under Section 11AC of the Act, penalty under Rule 25 is set aside - as the penalty has already been imposed on the appellant -Thus, it is appropriate to set aside the penalty – Decided partly in favour of Assessee. - E/00444/2012 and E/00445/2012 - FINAL ORDER NO.40457-40458/2013 - Dated:- 6-9-2013 - Shri Pradip Kumar Das, J. For the Appellant : Shri S. Ramachandran, Cons. For the Respondent : Shri P. Arul, Supdt.- AR ORDER Both the appeals are arising out of a common order and, therefore, both are taken up together for disposal. 2. The appellant no.1 is engaged in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness as mentioned in the mahazar, which was not allowed. It is further submitted that it has come to the knowledge of the appellant that the witnesses is not traceable in the address as recorded in the Mahazar. He further submits that the alleged clandestine removal of the goods on the basis of the notebook is not supported by any evidence in the nature of supply of raw materials, manufacture and clearance and sale of goods. He also submits that Shri T. Ramkumar retracted his statement, which was not considered by the adjudicating authority. 4. On the other hand, the learned Authorised Representative for the Revenue submits that Shri T. Ramkumar is the son of the Licensee, who was looking after the business and in his statement he clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i T. Ramkumar. It is seen that on the same date i.e., 16.07.2010, Shri T. Ramkumar in his statement stated as under: You have enquired about the maintenance of the said notebook and I have informed that the notebook is maintained at our factory which is maintained only for accounting of actual production of dipped splints at the said machine installed in our factory. The quantity entered in the said notebook is nothing but the actual production of dipped splints. Then you have verified with the respective Dipped Splints Registers (Form-VI register) and two RGI registers pertaining to our factory and found that normal variation between the quantities shown in the 80 page notebook maintained at the machine room and the dipped splin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy cash-in-hand, I have not bothered about their whereabouts and did not care about the issue of bills invoices and payment of duty. They have also compelled me not to give any bills of invoices and not to enter it into our factory records and the only they will receive our products i.e., dipped splints, on the higher rate offered by them. Due to our financial critical condition in maintaining our factory, I have been forced to manufacture the dipped splints at our factory by making use of power operated machine installed at our factory and removed it without entering it into our factory s statutory records and without payment of duty which may affect the rate offered by the persons concerned. It is pertinent to note that the above statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the above discussions, the demand of duty along with interest and penalty under Section 11AC of the Act, 1944 are upheld. As the penalty has already been imposed under Section 11AC of the Act, penalty under Rule 25 is set aside. In terms of second provisio to Section 11AC of the Act; if the duty determined and interest payable thereon is paid within 30 days from the date of communication of this order, the amount of penalty liable to be paid shall be 25% of the duty determined, failing which the appellant is liable to pay penalty equal to duty as determined. The appeal filed by appellant no.2 is the son of the Licensee. As the penalty has already been imposed on the appellant no.1 and, therefore, it is appropriate to set aside the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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