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2013 (9) TMI 459 - AT - Central ExciseClandestine removal - CENVAT credit Demand - Penalty - shortage of goods - Held that:- COMMISSIONER OF C. EX., KANPUR Versus RAGHUNATH INTERNATIONAL LTD. [2009 (2) TMI 620 - CESTAT, NEW DELHI] - mere shortage of finished goods cannot be equated with clandestine clearance in absence of other evidence and in such a situation penalty u/s 11AC of Central Excise Act, 1944 is not warranted - there was no corroborative evidence that short found finished goods were clandestinely cleared nor it had been so admitted by the assesse. Mere signing of the chart alleging removal of finished goods cannot be treated as clear admission of the clandestine removal - Moreover, diary on which the reliance has been placed only contains the vehicle numbers which had left the factory - There was no indication as to whether those vehicles had carried finished products and if cleared had also been taken on presumption basis which was not permissible - once the Commissioner (Appeals) gives this finding, his earlier finding of upholding the demand merely because the Director of the appellant-company had admitted the same would become unsustainable. The duty demand against the assesse was not sustainable - the order upholding the duty demands against the assesse and also upholding the cenvat credit demand and penalty was not sustainable - there was nothing in the statement of Director of the assesse-company from which it can be inferred that he had admitted the clandestine removal of the goods found short or that he had admitted that the exit vehicles mentioned in the diary had carried finished goods removed without payment of duty. – Decided in favor of assesse.
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