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2015 (11) TMI 245 - AT - Central ExciseDuty demand - Cum duty benefit - Shortage of stock - Clandestine removal of goods - Held that:- To claim the benefit of Central Excise duty paid in respect of invoice nos.1 to 4, in support of their contention that a part of the goods were cleared on payment of duty cannot be appreciated and accepted inasmuch as the appellant had not produced any evidence in respect of clearance of 20.315 MTs of towers to M/s. U.R. Telecom (P) Ltd. As such, I am of the view that the duty demand in respect of the said quantum of supplies made by the appellant is required to be upheld. However I am of the view that the entire consideration has to be treated as cum duty and the benefit of duty has to be extended to the appellant. As regards confirmation of demand of duty in respect of 8.256 MTs, detected as short stock by the visiting officers, I find that the said visit in the factory was on 09/09/1998. The invoices No.8 to 15 under the cover of which the appellant cleared the goods to M/s. U.R. Telecom Research Pvt. Ltd. are dated 11/08/1998, 12/08/1998 and 13/08/1998. This clearance was during the period of less than one month prior to the visit of the officers. As such, it can be reasonably concluded that such non-duty paid clearances from the factory, contributed to the shortages of the final stock of the appellant. Otherwise also in the absence of any corroborative material showing clearance of such short found final goods to any other person, I am of the view that the confirmation of demand of duty in respect of the same on the findings of clandestine removal is not in accordance with the settled judicial precedent decisions. - Impugned order is set aside - Decided partly in favour of assessee.
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