TMI Blog2012 (7) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority to defend the adjudication. There was no controversy of the fact found by investigation when physical verification resulted in discrepancy in stock and more particularly, shortage of raw material. Possible inference that may arise is either the raw materials were removed as such or those must have been instrumented to make finished goods for clandestine removal. It would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtage duty was paid. When this is the factual position, the authority in para 5.6 says that there has been no admission of clandestine removal and that was not proved by the department. He further proceeded to say that clandestine removal is a serious charge and mere shortage without any evidence cannot lead to any conclusion of clandestine removal leading to invocation of provision of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and caprice are alien to justice. Once the evidence unequivocably speaks about breach of law, the consequence of law under appropriate provision of statute shall apply. The decision of the first appellate authority lacks congruity and based on no examination of law. 2. It is categorically clear that assessee failed to adduce evidence before the appellate authority to defend the adjudication. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd speaking order, granting fair opportunity of hearing to the assessee. E/1916/2009-SM 4. Revenue is in appeal against reduction of penalty of Rs. 2 lakhs as against imposition of Rs. 6,84,575/- in adjudication. There is no discretion available to reduce the penalty in the event of existence of element of Section 11AC of Central Excise Act, 1944. The Adjudicating Authority invoked Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on nearly four occasions as is apparent from the appeal record. It is noticed that appeal of the assessee is rolling on in the Tribunal since 14th July, 2009. Notices after notice have gone and public time and expenditure has been wasted. Therefore, there was no option before the Bench but to decide the matter on merit. The matter reached to the conclusion as above, accordingly. (Dictated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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