Per Archana Wadhwa :

The appellants are challenging the confirmation of demand of duty of Rs. 1,10,166.00 (Rupees one lakh ten thousand one hundred sixty-six) confirmed against them on the findings of clandestine removal of Battery Plates manufactured by them. An identical amount of penalty has also been imposed upon them; that the said demand of duty has been confirmed against the appellants on the basis of the entries made in the diary maintained by Shri Muneswar Pandit, Proprietor of the appellant firm. In his on-the-spot statement, he, on behalf of the appellant firm, had admitted that he had been clearing the goods without coverage of challans and without payment of duties. Apart from the statement of the appellant company, there is a statement of Shri Jaiprakash, Supervisor of the appellant company. In the said statement, both these persons deposed that the entries made in the private exercise book reflect the partywise and datewise removal of their manufactured final products from their factory. In fact, the proprietor firm has the responsibility/liability for payment of duty on the Battery Plates cleared under the challan of another Unit situated in the premises which was neither a registered SSI Unit nor was having any trade licence.

2. The appellants have submitted that the alleged clandestine clearance of Lead Oxide and Battery Plates are only based upon the diary of Shri Pandit, which was actually used for recording the orders of the customers. There is nothing on record to reflect that the entries made therein, and the orders received by them from their customers, have been carried out by the appellants by actually delivering the goods to their customers. It is the contention of the appellant company that after writing the orders in the statutory diary, the goods were being supplied to their customers under cover of bills and challans and on payment of proper duties. However, no efforts have been made by the appellants to show that any of the entries made in the note-book, if the same pertains to the orders, have been reflected in the statutory records where the appellants maintained that the orders have been subsequently carried out by them on payment of duty. I also do not find any merits in the appellants' contention that there is no evidence on record to reflect upon the clandestine activities. Apart from the fact that entries made in the note-book being maintained by the proprietor of the firm as also by the Supervisor of the firm, have been detected by the Visiting Central Excise Officers, there are statements of the Proprietor and the Supervisor, which are corroborative with each other. In the said statements, the appellants have admitted their duty-liability and removal of the goods without payment of duty. A mechanical retraction of the said statements by the deponent, has been rightly rejected by the authorities below as an after-thought. As such, I do not find any merits in the appeal and confirm the demand of duty against them. However, keeping in view the facts and circumstances of the case, the penalty amount is reduced to Rs. 50,000.00 (Rupees fifty thousand). But for the above modification in the quantum of penalty, the appeal is otherwise rejected.