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2017 (10) TMI 612 - AT - Central ExciseClandestine removal - shortage of inputs in comparison to the book balance as detected during the stock verification - case of Revenue is that the labor payment vouchers would be relied upon to establish the charge of clandestine removal - it is contended by the Revenue that the evidentiary value of loose sheets and the writing pads is beyond any doubt to establish charge of clandestine removal. Held that: - It is clear that the assessee complained to the Commissioner of Central Excise against the visiting officers and apparently, no steps had been taken - There is no tangible evidence to indicate manufacture and clandestine removal of the goods. The preponderance of probabilities in the context of the evidences vis-a-vis, the statement does not lead to conclusion of charge of clandestine removal. Therefore, the Commissioner (Appeals) rightly set aside the demand of duty partly. The amount of ₹ 43,533.59 was confirmed for shortage of raw materials ascertained during the stock verification. There is no material available on record of removal of the shortage materials clandestinely without payment of duty and the imposition of penalty of equal amount of duty is not justified. Regarding the confiscation of the excess finished goods and the imposition of fine and penalty, the excess quantity of finished goods was ascertained during stock verification. A feeble attempt was made by the ld.Counsel of the assessee that the stock verification was not conducted in proper manner - The adjudicating authority observed that he customer of the assessee stated that in earlier occasion, he received the goods without invoice. It is already stated that the customers retracted the statements immediately. In any event, the finding of the adjudicating authority on the basis of the customers is not tenable unless there is material available on record in relation to the seized goods - the confiscation of the excess finished goods is justified for contravention of the Rules and the amounts of imposition of fine and penalty are excessive. The imposition of redemption fine and penalty of ₹ 1,00,000/- and ₹ 85,000/- respectively are reduced to ₹ 50,000/- and ₹ 35,000/- respectively - decided partly in favor of appellant.
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