TMI Blog2009 (10) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of the Commissioner (Appeals) No. 24-CE/07 dated 16-3-2007. 2. Heard both sides. 3. The relevant facts, in brief, are that the respondents are engaged in the manufacture and clearance of metallised polyester film falling under Chapter 39 of Central Excise Tariff Act, 1985. The officers visited the factory premises of the respondent on 29-11-2004 and they found the recorded quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logical explanation for the goods short found. Therefore, such shortage should be treated as a case of clandestine removal and penalty under Section 11AC is justified. In view of the above, the order of the Commissioner (Appeals) in setting aside the penalty is not proper and the said order should be set aside and penalty imposed by the original authority should be restored. 5. The learned Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be held to be clandestine removal to invoke the provision of Section 11AC. 6. I have carefully considered the submissions from both sides. At the outset, it is to be noted that the shortage of goods, on the date of visit of the officers, is not in dispute and the duty liability has been discharged and the respondent is not in appeal against the order of the Commissioner (Appeals) confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) in not upholding the penalty is justified. However, the reasoning adopted the Commissioner (Appeals) for setting aside the penalty namely payment of duty prior to issue of show cause notice may not hold good due to subsequent case laws. Thus, the decision of the Commissioner (Appeals) in not upholding the penalty is justified, though not the reasoning adopted by the Commissioner (Appeals). 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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