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2017 (8) TMI 103 - AT - Central ExciseShortage of stock - The main contention of the ld.Consultant is that stock verification had not been undertaken properly and in the absence of any responsible person available in the factory, no representative was present at the time of stock verification - Held that: - I find that Shri Arun Kr. Das, partner of the assessee firm was present at the factory and also recorded the statement dated 26.03.1999 during stock verification. It is seen that on 26.03.1999, Shri Arun Kr. Das, Partner of the assessee and Shri Joydeep Sutradhar, Manager of the assessee signed the stock verification reports. Therfore, I do not find any force in the submission of the ld.Counsel that the stock taking was undertaken in the absence of any responsible person in the factory. Excess quantity of labeled packed Biris without packing - Held that: - The ld.Counsel admitted a part of the shortage of unbranded/unbaked Biris ascertained on the basis of the notebooks and disputed the demand of duty on the balance quantity as the Revenue failed to prove the charge of clandestine removal. I am unable to accept the contention of ld.Counsel for the reason that the appellant cannot accept the evidence of note books partly, unless it has submitted a statement of reconciliation of the said notebook. In the present case, the appellant failed to reconcile the entries in the notebooks and therefore, the demand of duty on the balance quantity, shortage of unbranded and unbaked Biris is justified. The appellant had not placed any reconciliation of the entries in the notebooks with the statutory records. The ld.Counsel had not disputed the recovery of the notebooks from the premises of the assessee. It has also not disputed the corroboration of the entries of the note book and in the aeized private packing serial register. Therefore, the contention of the ld.Counsel is without any force on this ground also. Penalty u/s 11AC - Held that: - the appellant accepted partly the shortage of unbranded/unbaked Biris by way of adjustment of excess labeled Biris based on the notebooks and rough private books. They cannot deny the demand of duty on the balance quantity on the basis of the same evidence, as they fail to clarify the details of entries in the said notebook as observed by the adjudicating authority. As it is a case of charge of clandestine removal of goods, the imposition of penalty under section 11AC is warranted. Penalty on partners - Held that: - the penalty on the assessee was imposed under section 11AC of the Central Excise Act, 1944. In such situation, imposition of penalty on the partners are excessive. Appeal allowed - decided partly in favor of appellant.
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