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2015 (4) TMI 737 - AT - Central ExciseManufacturer - Excisability - Demand - Clandestine removal - Shortages - Job work charges - Seizure of goods - Held that:- Revenue is correct to say that shortage of 4116 locks established in the reported decision aforesaid. Appellant did not place any material to suggest that the determination of cum-duty value of such locks was erroneous. When no cost sheet was placed by appellant to show the material component in each lock, labour and overhead charges incurred as well as financial expenses made, it is difficult to discard the finding on valuation made by learned Adjudicating authority. Therefore duty demand of ₹ 28,954/- on such count is confirmed. Appellant failed to provide reconciliation statement of the goods of the description found short during investigation. Once Panchnama was drawn in the presence of the witnesses, inventory found during investigation and recorded therein remain unquestionable in absence of any cogent and credible evidence to find fault in recording thereof. Plea of eye estimation fails to stand. Appellant did not provide any material to establish impossibility of manufacture of 1,49,524 locks. In absence of any technical or scientific data, it is not possible to discard the conclusion of arise of 1,49,524 locks out of shortage of goods found by investigation. - following the decision of the High Court of Madras in the case of Alagappa Cements Pvt. Ltd. Vs. CEGAT, Chennai reported in [2010 (10) TMI 131 - MADRAS HIGH COURT]. When there was seizure of the locks of different description from the premises of M/s. R.P. Locks, appellant did not disclaim clearance thereof from its factory. The specification of locks seized proved that those were the manufactured goods of the appellant. When the appellant failed to produce evidence of lawful clearance of the specified description of the goods and duty payment evidence, the only inference that can be drawn is that premise of M/s. R.P. Locks was berthing place for clandestinely removed goods of the appellant. Accordingly, the demand of ₹ 1,87,015 also sustains. Revenue brought out its case clearly with evidence recorded. No doubt, there may be certain amount of arbitrariness in best judgment assessment. But the estimation itself when sustained in the first round of litigation and shortage of stock was found by Tribunal, appellant s questionable conduct came to record. The appellant therefore miserably fails to get any benefit in respect of penalty. Accordingly, even on account of penalty, the appellant fails to succeed. So far as penalty of ₹ 2,50,000/- imposed on Shri Ravi Jain is concerned, the Adjudicating Authority has not found his active involvement in the clandestine removal. It was only a presumption by Adjudicating Authority as to his no accounting made as abettor. In absence of any cogent and credible evidence of his conscious involvement and nexus, the penalty levied on him is waived. His appeal is accordingly allowed. - Decided partly in favour of assessee.
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