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TMI Blog2018 (2) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the factory premises of the main appellant on 13/10/2009 and conducted physical verification of the goods lying in stock and also verified the records maintained by the main appellant. Further investigations were conducted by recording statements of connected persons and also scrutiny of certain private records recovered during the visit. On completion of the investigation, proceedings were initiated against the appellants for demanding Central Excise duty on unaccounted stock/clearances of excisable goods, confiscation of unaccounted stock and for imposition of penalties under various provisions of Central Excise Act, 1944 and rules made thereunder. 3. Appeal numbers E/2001/2012 and E/2002/2012 is against order-in-appeal dated 09/04/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock of 819.240 M.T. Thus, there is hardly a difference of 1.820 M.T. Similarly, for MS billets, the difference was only 3.940 M.T. There was no excess stock and the delay in updating the statutory records cannot lead to the allegation of unaccounted stock. Thus, the learned Counsel submitted that there is no case for confiscation or penalty. 6. The learned AR reiterated the findings of the lower authorities. He submitted that when the officers visited the factory of the appellant on 13/10/2009, they verified the physical stock of available excisable goods. When the same was cross-verified with the statutory records, there were substantial differences. The unit of the appellant was working round the clock and the reason adduced for non-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction claimed to have been made on 11th and 12th October 2009 till the visit of the officers on 13/10/2009. Even if the statutory records were not updated for any reason, the appellant could have produced the production slip or any other internal document to satisfactorily explain the difference. The details were presented much later. As such, we find no reason to differ with the finding of the lower authorities regarding confiscability of good and penalty on the appellants. 9. However, we note the violation under Rule 25 was limited to only non-accountal of excisable goods manufactured and stored by the main appellant and there was no allegation of clandestine removal. We note that the redemption fine imposed for redeeming the confiscated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l excise duty. We hold that the Tribunal in various cases have been repeatedly holding that a paid employee acting in discharge of his duty as per directions of the controlling official cannot be held liable to penalty unless a specific role with a malafide intend for personal gain can be brought out with the evidences. No such evidence is brought in the present case. In fact, the Original Authority simply records that the second appellant is looking after day-to-day affairs of the main appellant and hence, rendered himself liable to penalty under Rule 26. We find such summary finding is without support of law. Accordingly, we set aside the penalty imposed on the second appellant Shri Ashok Mishra. 11. Appeal No. E/51004 of 2015 is against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of SS billets, the learned Counsel submitted that the reliance placed by the Original Authority on the report to Direction and daily analysis of production report for the period 01/09/2009 to 11/09/2009 is not proper. The Original Authority selectively relied on the private documents and did not give consideration for the difference due to cutting loss. The Revenue relied on the fact that on many days the production quantity shown in the private record tallied exactly with the RG-1 register and wherever it is not tallied the private records are relied on. The learned Counsel submitted that the report of Shri Desai cannot be given much importance as no corroborative evidence to support the case of unaccounted production and cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn by the lower authority regarding non-duty paid clearance of such accounted goods cannot be contested. 16. Regarding unaccounted clearance of SS billets and flats, we note that the Original Authority relied on a private note book maintained by Shri Desai, Chief Executive of the main appellant. Admittedly, the entries therein were hand written by him with elaborate details of production for the day, grade of billets, number of heats, average monthly production etc. The said report is meant for Director of the company. We are not convinced with the submission of the appellant regarding lack of authenticity of the records maintained by the Chief Executive in his own hand writing. In fact, this aspect has been examined in detail by the O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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