Full Judgment
2. The learned Counsel for the appellant submitted that there was no intention to evade duty and, therefore, imposition of penalty was not warranted.
3. According to the Revenue, the investigation had revealed that the appellant had cleared 753 PVC pipes involving excise duty of Rs. 48,051/-under invoice No. 00011 dated 15.4.1999 and further 80 pieces of PVC pipes involving central excise duty of Rs. 11,520/- under a parallel invoice No. 00011 dated 12.4.1999, mentioning therein debit entry No. 19 dated 12.4.1999 in RG.23A Pt.II register though no duty was debited therein. This Tribunal had earlier, by order dated 11.5.2005, while upholding the order of the Commissioner (Appeals) reduced the penalty to Rs. 15000/- from Rs. 85,296/-, which was imposed under Section 11AC of the Act read with Rule 173-Q of the Rules of 1944. The duty liability thus became final; but the Revenue challenged the reduction in penalty which order came to be set aside by the Hon'ble High Court with the aforesaid direction to the Tribunal to give a fresh decision on the question of levy of penalty.
4. From the material on record, it transpires that the goods were cleared under a parallel invoice and the Managing Director of the appellant company had admitted the signature of the staff on the said parallel invoice in respect of 80 pieces of PVC pipes. He had no valid explanation to offer. It also appears that the shortage in question was admitted by the said Managing Director in his statement recorded on 16.9.1999. The shortage was duly reflected in the panchnama. In view of the admission of the shortage, there is no substance in the contention raised by the learned Counsel on behalf of the appellant that no proper weighment method was adopted. The panachnama was prepared in the presence of two independent witnesses and physical stock taking was also conducted in the presence of the Managing Director, who had put his signature in token of his acceptance and no objection was taken against weighment at the time of physical stock-taking. Signature of Commercial Manager in parallel invoice was duly identified. On the totality of the facts and circumstances established, the authorities below have rightly found that there was clandestine removal of 80 pieces of PVC pipes involving excise duty of Rs. 11,520/-under the parallel invoice dated 12.4.1999. This was obviously done with a view to evade excise duty. Therefore, imposition of penalty was clearly warranted under Section 11AC of the Act read with Rule 173Q of the Rules of 1944. The adjudicating authority had imposed penalty of Rs. 85,296/-, which was equal to the demand of excise duty (Rs. 73,776/- and Rs. 11,520/-) confirmed under that order which liability is not disputed. Therefore, following the ratio of the decisions of the Hon'ble Punjab & Haryana High Court in Commissioner of Central Excise, Delhi-III v. Machine Montell (I) Ltd. and IIIpea Paramount Pvt. Ltd.; (supra) as well as the direction given in the remand order that, if it is held that levy of penalty is warranted having regard to the requirement of the statute, the Tribunal is bound to levy penalty equal to the amount of duty the appeal is dismissed, by confirming the penalty imposed on the appellant.