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2013 (12) TMI 696 - CESTAT AHMEDABADApplicability of Section 11AC of the Central Excise Act, 1944 in the light of the judgement of UoI Vs. Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT ] – Held that:- Section 11AC of the Act was introduced which made the position clear that there is no scope for discretion and accordingly it cannot be sustained that Rules 96 ZQ and 96 ZO have a concept of discretion in built to impose lesser penalty - Investigation has not established that shortages found in fact were cleared clandestinely by the appellant. There is no confessional statement of the appellant that shortages were cleared clandestinely without payment of duty - Shortages found in the stocks could be a good ground for raising suspicion but it should be corroborated by the confessional statement of the assessee and/or other evidences that such shortages were clandestinely removed also - There is also no evidence of seizure of any goods clandestinely cleared by the appellant - the shortage of finished goods by itself could not, unless it is related to clandestine removal of finished goods for which there was no material evidence, infer evasion of Excise duty - It is also an established law that any presumption, howsoever strong, cannot take the place of an evidence - The ingredients as contained in Section 11AC of Central Excise Act, 1944 are not applicable to the facts and circumstances of the present case – thus, penalty imposed upon the appellant under Section 11AC of Central Excise Act, 1944 is not imposable and set aside – Decided inf avour of Assessee.
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