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2014 (4) TMI 260 - AT - Central ExciseShortage of finished goods - Clandestine removal of goods - benefit of Cum Duty price - Duty demand - Penalty u/s 11AC - Commissioner allowed credit holding that inputs corresponding to this credit were actually used in the manufacture of clandestinely cleared goods - Held that:- Revenue has not given detailed reasons for rejecting the respondent s plea. The probable reasons could be that the quantity 5,735.550 Kg. (value Rs. 7,85,770/-) of finished goods DASA did not tally with any combination of parallel invoices on record. There is also nothing on record to show that the respondent failed to correlate these details when called upon to do so by the Range Superintendent. The period of dispute is from December, 1999 to 23.03.2001, and in the absence of any documentary evidence total shortage of finished goods detected in the factory on 23.03.2001 has to be attributed to the finished goods removed under the cover of parallel invoices issued up to May, 2000. Input for which credit of Rs 2,27,220/- has been claimed by Shree Chem have also been admitted to be used in the manufacture of the finished goods cleared clandestinely. Onus of proving that goods cleared on parallel invoices were different from the shortages found in the factory lies with the department. So far as the benefit of ‘Cum-duty-price’ to be extended to Appellant ‘Shree Chem’ is concerned, it is relevant to mention that this quantification was not agitated before the lower authorities and has been raised only before this bench. Therefore, for allowing the benefits of ‘Cum-duty-price’ the case is required to be remanded to the Adjudicating Authorities - The allowance of MODVAT Credit of Rs. 2,27,220/- by the lower appellate authority vide impugned Order in Appeal is upheld. Penalty equivalent to the total duty quantified by the Adjudicating Authority after allowing cum-duty benefit, if any; will be impossible upon Appellant Shree Chem under Sec. 11AC of the Central Excise Act 1944. However, if the entire duty, interest and penalty is paid within 30 days from the date of communication of quantified duty by the Adjudicating Authority, the penalty imposed under Sec 11AC will be reduced to 25% of the penalty imposed as per the provisions of Sec 11AC of the Central Excise Act 1944 - Decided partly in favour of assessee.
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