CCE Vs. KRISHNA PLASTIC INDUSTRIES

JUDGEMENT

(1.) THIS is revenue's appeal against the impugned order in appeal dated 10.10.06 passed by CCE (Appeals), Chandigarh by which the Commissioner (Appeals), while upholding the Asstt. Commissioner's order confirming the duty demand, has set aside the order of penalty under Section 11AC.

(2.) NONE appeared for the respondent. Respondent, however, vide a letter dated 4.12.08 have requested for decision of this appeal on merits on the basis of the submissions made in the letter.

(3.) I have carefully considered the submissions of the ld. DR, the submissions made by the respondent in his letter dated 04.12.08 and have also perused the records. From records, I find that verification of the stock of finished goods - PVC Pipes, at the time of Officer's visit to the factory of the respondent on 24.11.04 had been conducted by counting the number of pipes and multiplying the same with the weight of one pipe of same diameter and thickness. The respondent did not dispute the weight of total weight of PVC pipes as determined by the Officers and also the fact that the ascertained weight is 2497.60 Kg less than the weight of PVC pipes as recoded in the RG I Register. The respondent not have given any satisfactory explanation for the shortage and therefore. It has therefore, to be presumed that the goods found short had been removed without payment of duty in a clandestine manner. The Commissioner (Appeals) has set aside the penalty only on the ground that the duty had been paid prior to the issue of show cause notice, which is no longer valid ground in view of the law laid down by the Hon'ble P & H in the case of CCE, Delhi -III v. Machino Montell (I) Ltd. and Anr. reported in and also the judgment of Hon'ble P & H in the case of Omkar Steel Tubes (P) Ltd. In view of this, I am of the view that the Commissioner (Appeals)'s order setting aside the penalty on the respondent is not correct and the same is set aside. The penalty imposed on the respondent by the Astt. Commissioner in the Order -in -Original is restored. The Revenue's appeal is allowed.