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2013 (8) TMI 769 - AT - Central ExciseShortage of Imported Goods - The appellant had been importing the fabrics which were consumed for the manufacturing of the goods for export - on the verification of the records it was found that there was a shortage of imported fabrics - Held that:- The issue in the case had not been properly addressed by the adjudicating authority - there were various submissions which had been made by the appellant before him which remained un-addressed and a summary conclusion had been arrived - The issue needs re-consideration by the adjudicating authority - order set aside and remand the matter back to the adjudicating authority to reconsider the issue afresh, after following the principles of natural justice - nothing incriminating was found in as much as they have never admitted to have procured the imported fabrics which were allegedly diverted by the appellant. The Panchnama witnesses had retracted the statements and cross-examination conducted, indicates that there was something amiss - The Department had not produced the four brokers for cross-examination whose names came up during the recording the statement which was required to substantiate the case of diversion of imported goods - The finding/remarks were unsubstantiated as in the entire case record there was no evidence to claim that the appellant had been resorting to making deliberate entries in RG-1 register. Whether the Removal of the Goods were clandestine Removal - As decided in ASSISTANT COLLECTOR OF CUSTOMS Versus KUNHI KORATH BALAN [ 1990 (8) TMI 156 - HIGH COURT OF JUDICATURE AT BOMBAY] - The Panchnama was faulty, no adverse inference can be drawn and such Panchnama had to be excluded from the consideration of the case against any person - shortage of goods in itself does not mean that clandestine removal and clandestine removal needed to be proved by the Department and also for the proposition that the assessee was entitled to give proper explanation of the difference in stock taking even at the time of the reply to the show cause notice - appeals were allowed by way of remand – Decided in favor of Assesse.
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