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2017 (7) TMI 642 - AT - Central ExciseShortage of goods - Clinker & HDPE Bags - appellant claims that the allegation of clearance/removal of Clinker & HDPE Bags clandestinely is vague and presumptive and not corroborated with any evidence - CENVAT credit - Held that: - there is no allegation in the Show Cause Notice of any clandestine activity on the part of the appellants. The whole Show Cause Notice is based on the apparent shortage found at the time of inspection. Moreover, I find that the valuation of stock have been done basically by way of eye estimation, which is definitely prone to error. This issue have been repeatedly considered by Hon’ble Allahabad High Court, in the case of UP. STATE CEMENT CORPORATION LTD. Versus UNION OF INDIA [1996 (4) TMI 139 - HIGH COURT OF JUDICATURE AT ALLAHABAD], wherein the Hon’ble High Court have accepted that clinker is an item prone to handling, transportation and manufacturing loss. Hon’ble High Court have further held that such loss is under the category of normal loss requiring no special order of remission from the appropriate authority under Rule 21 of the CER, 2002. The appellant shall be entitled to take credit, of the Cenvat credit reversed for HDPE Bags. Further, I find that there is no contumacious conduct nor any suppression of facts as is evident on the face of the record. In this view of the matter, I set aside the balance demand of Cenvat credit as confirmed, vide the impugned order under Rule 15 (2) of Cenvat Credit Rules, 2004. I also set aside the penalties imposed, under all the Sections and/or Rules. The appellant shall be entitled to take credit of the balance Cenvat, if any. Appeal allowed - decided partly in favor of appellant.
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