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TMI Blog2014 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon. High Court of Gujarat in the case of Akash Fashions Prints Pvt. Ltd - [2009 (1) TMI 113 - GUJARAT HIGH COURT] as to that Tribunal can also extend the benefit of reduced penalty of 25% of the amount of duty, if it was not extended by the lower authorities - penalty imposed on appellant No. 1 should be 25% of the amount of duty confirmed on them as per the provision of section 11AC of the Central Excise Act, 1944, subject to the condition that the entire duty liability and the interest and said penalty as indicated herein above is paid within 30 days of the receipt of this order. - Decided partly in favor of assessee. - Appeal No.: E/785,786,787,788/2007-SM - ORDER No. A/10303-10306/2014 - Dated:- 28-2-2014 - Mr. M.V. Ravindran, J. For the Appellant : Shri Mithil Dave (Adv.) For the Respondent : Shri Shiva Kumar (Adv.) JUDGEMENT Per : Mr. M.V. Ravindran; All these four appeals are filed separately by the appellants against the impugned order passed by the First Appellate Authority. i) M/s Mahesh Enamelled Wires Pvt. Ltd referred to as first appellant, ii) M/s Ratna Wires referred to as second appellant. iii) M/s Krishan Kumjar Kabra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid on such inputs was used by the Appellant 1. This fact was admitted by Shri R P Solanki the Production Supervisor of Appellant 1 in his statement dated 2.8.2004 who incidentally has been supervising the production activity of the units of both Appellant 1 and Appellant 2.It was also revealed from the seized documents that Appellant 1 and Appellant 2 had clandestinely cleared the scrap of copper without payment of duty and this was admitted by Shri R P Solanki, Production Supervisor in his statement dated 2.8.2004. The fact of clandestine removal and the creation of dummy firms to cover clandestine of finished production was admitted by Shri Bimal kumar Sethia, the Chief Executive of the units of both Appellant 1 and Appellant 2 in his statement dated 2.5.2003 and statement dated 10.8.2004 and the content of his statements was also confirmed by Shri Krishnmt kumar Kabra, the Director of the unit of Appellant In his statement dated 2.5.2003 and statement dated 20.8.2004 respectively. Different employees of Appellant 1 in their statements also confirmed the above facts of clandestine manufacture and clearance of finished goods/raw materials. Further, the names of the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority failed to appreciate that no goods were found at the transporters premises which were allegedly removed by the appellant clandestinely. It is his submission that in the absence of any evidence that the goods were removed clandestinely, the whole issue seems to be booked by the investigating officer on presumptions and confirmed by the lower authorities. It is his submission that no proper inquiry was conducted as to how Anurag Electricals is a dummy unit and the appellant has made any clandestine clearance to such Anurag Electricals. It is his submission that the statements which have been relied upon were given in fear, threat, and coercion and physical injuries were inflicted on the employees. 4. It is his further submission that the demands have been raised only on assumptions presumption and conjecture and there is no corroborative evidence to prove the charges, except confessional statements and the officers did not recorded any statements of security guard. It is his submission that penalties which have been imposed are incorrect in as much as appellant has paid an amount of Rs 20 lacs when officers visited the premises. 5. Ld Departmental Representative on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajput, the Excise Clerk as well as the Production Supervisor. Therefore, the Appellants argument regarding non-recording of the statement of the Security Guard was confirmed by is of no consequence. I also find that Shri R P Solanki, the Production Supervisor of both M/s Mahesh Enamelled and M/s Ratan Wires, in his statement given as late as on 2.8.2004 has agreed with the contents of the panchnama dated 2.5.2003 the statement dated 2.5.2003 of the the Excise Clerk and the statement dated 2.5.2003 of Shri Bimal Kumar Sethia, Chief Executive and confirmed of having maintained the said documents and stated that the said records contained the actual production and clearance details of their final product starting from the raw materials stage to the production and clearance stage and hence were always secretly placed with the Security Guard. Shri Bimal Kumjar Sethia, Chief Executive has also once again in his statement recorded on 10.8.2004 confirmed the said facts and agreed with the statement dated .8.2004 of Shri R P Solanki, Production Supervisor. Shi Krishnan Kumar Sethia, the Director has also in his second statement recorded on 20,8.2004 agreed with the contents of the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as, there is nothing put on record to show that the excise clerk, production supervisor, Chief Executive and the directors had retracted the statements. Both the excise clerk, production supervisor have confirmed that private notes/chits which contains the details of clandestine removal of goods were written and maintained by the employees of the appellant No. 1; if the recovered documents are admitted to have been maintained by the production supervisor and were in the factory premises (at the security gate), the said evidence is sufficient to prosecute the appellant, supported by the statements of Chief Executive and directors. 8. This takes me to the submission made by the Ld. Counsel that the statements were retracted from the entire case records except for the so called affidavit of the Chief Executive, Shri Bimal Kumar Sethia, there is nothing which indicates retraction of the statements. It is stated that the staff presented in front of him physical injuries also is devoid of merits as there seems to be no follow up any medical assistance were taken and the nature of injury in order to allege physical abuse of the officers. It is also to be noted that there is nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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