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2015 (1) TMI 992 - CESTAT NEW DELHIClandestine removal of goods - Shortage of goods - Imposition of penalty where duty has been paid during investigation - Held that:- During the course of investigation finished goods were found short and the appellant has paid the duty thereon. Thereafter conclusion was drawn by the department that as they have paid the duty therefore these goods have been removed clandestinely. In this case, there are other charges on the appellants that goods have been removed clandestinely by the appellants but the charges of clandestine removal have been dropped and therefore, in these circumstances, it cannot be held that goods have been cleared clandestinely. Although the appellants has paid the duty that might be to settle the issue at that stage, but from the records it is not coming out that the charge of clandestine removal has been proved with any supportive evidence except the goods were found short during the course of investigation. In these circumstances, although the appellant is not contesting the duty demand, therefore the same is not issue before me. Further I find that in this case, when the appellant has paid the duty but there is no demand of interest proposed, in these circumstances I hold that charge of clandestine removal stands unapproved. Therefore question of imposing penalty does not arise on the appellant. As the appellant is not contesting demand of duty of ₹ 3,03,523/- therefore appellant cannot claim refund thereof in consequence of this order. In the result, impugned order qua demand of duty of ₹ 13,70,150/- along with interest and imposition of penalty on the main appellant and penalties on co-appellant is set aside. - Decided in favour of assessee.
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