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2016 (9) TMI 978 - AT - Central ExciseDemand alongwith interest - Shortage of TMT bars - such shortages were accepted by the Appellant in physical stock-taking, but never admitted that the shortages were clandestinely removed from the factory - no evidence of clandestine removal from Appellant's factory - only statement of Shri Dipak Choudhary, Manager of the Appellant was available - Held that:- appellant never reverted back to the investigation before the issue of show cause notice that shortages found were reconciliable and that in fact there was no shortages in the stock of finished goods. A different stand taken after the issue of show cause notice, without any retraction, will have to be considered as an after-thought under proper legal advice. By admitting the shortages and not coming forward to explain the same, blocks the investigation. In the case of Majestic Auto Ltd. v. CCE [2004 (7) TMI 136 - CESTAT, NEW DELHI] CESTAT held that demand with respect to shortages can be confirmed when no tangible evidence and explanation was offered by the noticee. It is also made clear in this case law that there is no need for the department to produce any tangible and positive evidence to prove clandestine removal when Appellant has admitted the shortages and does not come forward to explain the shortages. No contrary judgement has been brought on record by the Appellant. Therefore, duty has been correctly confirmed against the Appellant along with interest. Non-extension of option of 25% reduced penalty - Section 11AC of the Central Excise Act, 1944 - Held that:- in the interest of justice, Appellant is given the option to pay 25% reduced penalty if the same is paid along with duty and interest demanded within 1(one) month from the date of receipt of this order. - Decided in favour of appellant
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