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2024 (9) TMI 832 - AT - Central ExciseClandestine removal - 411 MT of Portland Cement - shortage of cement - absence of any stock taking not being conducted by the Department - HELD THAT - It is borne out of records that at the time of visit of Anti Evasion team on 01.02.2010 the Account s Manager Shri Dinesh Agarwal had admitted that a quantity of 411 MT of cement were removed from their factory without payment of duty leviable on the value of the goods and sold in cash under the direction of Shri Samhu Agarwal Director of the Appellant Company. Shri Sambhu Agarwal Director in his statement recorded on 25.02.2010 accepted that the said goods were cleared without payment of duty. He only denied having given any specific direction to the Account s Manager for the sale of the said goods. In the present case as the duty was paid on the very next day and prior to the due date of filing the central excise return no interest is leviable in the matter. As for the penalty payable @ one percent the same as per law is to be calculated from the month following the month in which such duty was payable. Thus under the circumstances as the duty itself was paid within the said month question of imposition of penalty u/s 11A(6) would also not arise in the present matter. As for the appellants meek plea of ascertainment of clandestinely cleared quantity in the absence of stock taking it is stated that it is a settled legal principle that admitted facts need not be proved. The order of the lower authority is upheld to the extent of confirmation and appropriation of duty amount leviable. I set aside the orders of the lower authority regarding imposition of penalties on the appellants - Appeal allowed in part.
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