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TMI Blog2004 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty is apparent as no prescribed invoices were issued at the time of removal of goods. Charge of clearance of fabrics in the disguise of waste - It is for the Department to bring evidence to prove that the wastage reflected in statutory records is not the actual wastage and the burden is not cast upon the assessee to produce the documents relating to actual generation of wastage. The learned Advocate has also contended that the input-output norm as per EXIM Policy is 8% in respect of HDPE Woven Fabrics and 10% in respect of HDPE Woven sacks. This contention has also not been controverted by the Revenue. We, therefore, hold that the Revenue has not succeeded in establishing in the present matter that the Appellant No. 1 had removed good quality excisable goods in the disguise of wastage. We, therefore, set aside the demand of duty and penalty on this count. As observed by us earlier, penalty is imposable on M/s. Nutech Polymers Ltd. in respect of the duty demand upheld in this order. In the facts and circumstances of the case we are of the view that interest of justice will meet if they are ordered to pay a penalty of Rs. 25,000/-. We find no justification for imposing penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Advocate, submitted that there is no evidence that the final product was removed without payment of duty in the guise of waste; that the waste which arises in the tape plant and fabric section are entered in the private records; that the production reports only showed the wastage till the stage of production of tape and of fabric stage; that the wastage take place at various stages after production of tape and fabrics such as trimming waste, quality control test, weaving defects, fabric cutting, improper cutting of fabrics, etc., that the waste in this type of industry is approximately 8% up to the stage of manufacture of tape and fabric and 10% up to the stage of manufacture of bags; that the standard Input-Output Norms, as per EXIM Policy with respect to HDPE Woven fabrics is 1.080 Kg of HDPE granules vis-a-vis the quantity that has to be exported as 1 Kg. of HDPE Woven fabrics; that in respect of HDPE Woven sacks the quantity allowed is 1.10 Kg of HDPE granules vis-a-vis the quantity that has to be exported as 1 Kg of HDPE woven sacks; that M/s. Reliance Industries, in their work order of woven sacks specifically provided for 10% as a waste; that the Plastic Manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to daily production reports. 4.Regarding confirmation of demand of Rs. 1,44,572/- the learned Advocate mentioned that the bags in question were cleared on payment of duty under invoice issued under Rule 52A of the Central Excise Rules, 1944; that, therefore, the confirmation of duty is totally incorrect, that no penalty is imposable on Applicant No. 1 under Section 11AC of the Central Excise Act as there is no suppression of fact or wilful misstatement on their part as they were regularly submitting RT 12 Returns and the Department was fully aware of their activities; that no penalty is imposable on Nirmal Karanpuria, Director and Shri Kamal Kumar Mahajan, Works Manager, of the Appellant No. 1; that there is no allegation in the show cause notice that Shri Karanpuria was either supervising the entire activities of the factory or that Works Manager was reporting to him about the day to day activities of the factory; that Shri Mahajan is only an employee of the Appellant No. 1 and no penalty is imposable on him and reliance has been placed on the decision in the case of Z.U. Alvi v. CCE, 2000 (117) E.L.T. 69 (T) = 2000 (36) RLT 721 (CEGAT); that M/s. Mateshwari Enterprises are also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the various customers and the balance of cut fabrics lying with the job worker; that the scrutiny of Rule 52A invoice revealed that no invoices had been issued for the impugned quantity of bags; that Shri Mahajan had categorically admitted that no invoice had been issued by them in respect of the said quantity of bags. He also contended that the demand of duty is not barred by limitation, as claimed by the learned Advocate, as the Appellant No. 1 had indulged in evasion of duty by way of recording excess wastage in the RG1/Daily stock register and had removed the fabric in the disguise of wastage and they had removed bags without payment of duty; that consequently penalty under Section 11AC of the Central Excise Act is imposable on the Appellant No. 1; that the Director Shri Karanpuria was supervising entire activities of the unit and Shri K.K. Mahajan, was also reporting to him about day to day activities; that, therefore, penalty is imposable on both these persons; that M/s. Mateshwari Enterprises are also liable to penalty as a quantity of fabrics and sacks were found short in their premises. 6.We have considered the submissions of both the sides. Regarding duty amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste, were cleared. Moreover, we find substantial force in the submissions of the learned Advocate that the duty cannot be demanded for the period the daily production reports are not available. The onus of proof regarding clandestine removal is on the Department and cannot be shifted to the Appellants without discharging its onus. We find no force in the finding of the Adjudicating Authority that "in the absence of said reports for the earlier period, the Department had been left with no other option but to calculate the quantity of wastage actually generated before November, 2000 on average basis arrived at from the Daily Production Reports resumed for the period of November, 2000 to 18-3-2001 when no other documents had been produced by the assessee relating to actual generation of wastage." It is for the Department to bring evidence to prove that the wastage reflected in statutory records is not the actual wastage and the burden is not cast upon the assessee to produce the documents relating to actual generation of wastage. The learned Advocate has also contended that the input-output norm as per EXIM Policy is 8% in respect of HDPE Woven Fabrics and 10% in respect of HDPE Woven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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