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2013 (10) TMI 666 - CESTAT NEW DELHIAuthorization by the committee of commissioners – Held that:- One of the Commissioners has not put the date and only signed - it cannot be inferred that both the Commissioners had not signed on the same date – Following COMMISSIONER OF CENTRAL EXCISE, KANPUR Versus UFAN CHEMICALS [2013 (5) TMI 703 - ALLAHABAD HIGH COURT ] - there are no statutory rules prescribing that Commissioners will sit on same day at same time and take the decision about authorization - the preliminary objection raised by the respondent is without any basis. Penalty u/s 11AC – Held that:- The first ground that mere shortage of finished product without any cogent evidence of clandestine removal is not sufficient to allege clandestine removal and second ground of setting aside of penalty is that the entire disputed amount of duty was paid before issue of show cause notice - As regards the first ground that the evidence on record is not sufficient to prove clandestine removal - stock taking had been done in presence of the Authorised Signatory of the Assessee and at that time, no objection has been raised about manner of stock taking and on the contrary, the Authorised Singatory had accepted the shortage and had accepted that the goods might have been removed from the factory by the staff of factory without issue of invoices and without payment of duty. The respondent at this stage, cannot allege that there was no shortage - looking to the quantum of shortage the only conclusion which can be drawn, is that the goods found short have been removed without payment of duty and without invoices and as such no other evidence is required - Following Union of India Vs. Rajasthan Spinning & Weaving Mills Ltd. 2009 (5) TMI 15 - SUPREME COURT OF INDIA - penalty u/s 11AC would be mandatory even if the disputed amount of duty had been paid prior to the issue of show cause notice - the order setting aside the penalty u/s 11AC on the company is not sustainable and has to be set aside -the order-in-original passed by the Asstt . Commissioner is required to be restored – Decided in favour of Revenue. Penalty u/s 26 of CE Rules - Penalty u/s 26 of the Central Excise Rules, 2002 on authorized signatory of the respondent company, there is no evidence on record to prove that he was knowingly involved in removal of the goods without payment of duty and, therefore, penalty on him under Rule 26 is not called for - Decided in favour of Assessee.
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