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TMI Blog2017 (11) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... e M/S. NIBI Steel Ltd. is devoid of merits and needs to the rejected. The evidences which revenue wants to rely upon are considered in detail and on an correct appreciation, a conclusion has been arrived. I concur with the said findings - appeal filed by Revenue also dismissed. Penalty on M/S. NIBI Steels - Held that: - It is settled law that once there are findings of clandestine removal and confirmation of the demand of the duty is on said findings, equivalent amount of penalty needs to be imposed under section 11 AC of the Central Excise Act 1944 - penalty imposed on M/S NIBI Steel Ltd. is enhanced to ₹ 2,28,451/- from ₹ 50,000/-. Appeals disposed off. - E/3366/2006-SM and E/40 and 42/2007-SM - A/57828-57830/2017-SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be held that there is corroboration of clandestine removals by the transporter s statement. 7. It is a case of the M/S NIBI Steel Ltd. that the First Appellate Authority has overlooked the fact that there are no conclusive evidences in support of finding clandestine clearances, that the weighment of the stock is an estimated one, as the director had indicated that there is a difficulty to carry out complete weighment of the stock; estimating the weight for the purpose of charge of clandestine removals is incorrect; confirmation of the demands based upon the estimated shortage is incorrect and the adjudication order is also illegal as the show cause notice is issued by the Commissioner and adjudication is done by the Additional Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landestinely to the extent of quantities indicated in the weighment register of the Dharamkanta. Firstly, it is observed that the appellants got the electricity connection on 28.5.2001 and started production in June 2001. Therefore the demand for the period April and May 2001 is clearly unwarranted as being without any basis. Secondly, the weighment register does not show any description of the goods not the person who had got the goods weighed. Nor does it show any consignee. In this context it is observed that in order to come to a conclusion that such quantities were goods which were manufactured and clandestinely removed by the appellants, the Department should have investigated the matter to find out as to who the consignees were, what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my notice the order passed by the Commissioner, Central Excise, Raipur in order-in- original No. 31/Commr(Adj)/Rpr/2006, dated 8.3.2006 in respect of their sister unit, namely, M/s. Durga Engineering and Foundry Works, Bhilai. There also the demand was on identical basis resting on the weighment made and register entries of M/s. Rukhmani Dharamkanta. The Commissioner has rightly dropped the proceedings against that appellants on ground of insufficient evidence. The position is identical here. Therefore, I hold that merely on account of insufficient evidence the liability to excise duty for reason of suppression of facts and clandestine removal of goods cannot be pinned on the appellants. Thus the demand on this account is unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch for another manufacturer who is engaged in the manufacture of goods desired by him and accordingly, the vehicle will move to the second manufacturer for loading of the weighment of the same vehicle it cannot be concluded that the party no. I has issued invoice for a lesser quantity of the goods. Further, the investigators have also not adduced any substantive evidence like receipt of excess quantity of goods by the consignee as the details of consignee was available in the invoice, receipt of payment for more quantity of the goods by the party from the buyers. In this context I observe that the demand of ₹ 3,96,857/- is based on the entries made in the weighment register of the same Dharamanta. Here too I observe that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmacal Vs CCE [2004(167)ELT 472] and also in a large number of cases. Therefore, these separate penalties of ₹ 5,00,000/- each are set aside. It can be seen from the above reproduced finding that the evidences which revenue wants to rely upon are considered in detail and on an correct appreciation, a conclusion has been arrived. I concur with the said findings. In view of foregoing, I find the appeals filed by the Revenue are devoid of merits. 10. However, I find that the appeals of the Revenue are also on the point of imposition of equivalent amount of penalty on the confirmed demands of the duty (on M/S. NIBI Steels) on the goods which have been held as removed clandestinely, is correct. I find that in Paragraph No. 14, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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