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2018 (1) TMI 628 - CESTAT MUMBAIClandestine removal - shortage of stock - case of appellant is that difference in stock is only due to accounting system - extended period of limitation - whether the difference in stock of finished goods between theoretical accounting in the books of account and actual accounting based on actual weighment in the Central Excise records at the time of clearance can be considered as shortage of goods clandestinely removed and whether the extended period is invocable, in a case where all the facts were disclosed in the audited financial statements which is a public document and in a case where earlier show-cause notice was dropped involving the same facts? Held that: - the appellant have maintained a stand that the books of account is on the basis of theoretical calculation of production, whereas the quantity of clearance is taken on the basis of actual weighment. This method of accounting in books of account vis-a-vis on actual weighment basis is the reason for difference in the stock shown between both of the records. It is also considered that there is no iota of evidence that any quantity of alleged shortage or even small part of it clandestinely removed by the appellant - the discussion in the finding is based on his personal assumption and presumption without any rebuttal to the findings given by the adjudication order. It is also observed that the total difference is only to the tune of 0.24% as compare to the total production. This also goes on to show that such a meagre difference is obvious when accounting of production is made on theoretical basis and clearance of goods are made on actual weighment basis. Time limitation - Held that: - the appellant have been declaring adjustment of finished stock i.e. written of quantity in their books of account which was audited. Moreover, the similar practice was earlier noticed by the Department and show-cause notice was dropped by the Commissioner and the order of the Commissioner was accepted by the Revenue. In this scenario, it cannot be said the appellant have malafidely suppressed the fact, therefore the demand is clearly hit by limitation also. Appeal allowed - decided in favor of appellant.
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