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2014 (4) TMI 796 - AT - Central ExciseDuty demand - Penalty - Clandestine removal of goods - Shortage of stock - Cancellation of order - Held that:- apart from shortages detected by the officers at the time of their visit to the appellant’s factory, there was no other evidence available on record indicating clandestine clearances of such shortages. The appellant’s representative in his statement had clearly deposed that they take sponge iron to furnace by estimation only and the shortages can be on account of faulty accounting procedure. If that be so, the allegation of clandestine clearances of the produce cannot be upheld against the appellant. It is well settled that charges of clandestine removal are required to be substantiated with production of tangible and positive evidence. As regards confirmation of demand of duty of Rs.36,916/-, I find that the same is based on recovery of a parallel invoice No.70, dtd. 07.07.05 showing clearances of the goods to M/s Amba Steels. The said invoice was admittedly not entered in RG-1 register. The appellant’s plea that their customer M/s Amba Steels cancelled the order and as such another invoice was issued on the subsequent date, i.e., 08.07.05, cannot be accepted in the absence of any evidence to show cancellation of the order. Even if the order was cancelled, it was obligatory on the part of the appellant to cancel invoice subsequently and intimate the deptt. accordingly. Having not done that, I am of the view that confirmation of demand in respect of clearances made to M/s Amba Steels vide invoice dtd. 07.07.05 is justified - Decided partly in favour of assessee.
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