TMI Blog2010 (2) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal dated 19-2-07 confirmed the duty demand and ordered appropriation of the amount already paid towards the duty demand and beside this imposed penalty of Rs. 1,34,986/- on the respondent under Section 11AC. The Commissioner (Appeals), however, on appeal by the respondent vide order-in-appeal dated 21-2-08 set aside the order of penalty on the ground that there was no evidence that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and physical stock taking was conducted in the presence of independent panch witnesses in course of which the shortage of 47.800 MT in the stock of M.S. Bars was detected. Shri P.C. Sinha, Authorised Signatory was present at the stock taking and he agreed with the shortage detected by the officers and stated that the goods found short has been removed in his presence without payment of duty and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and also that the entire duty had been paid prior to the issue of show cause notice. It is against this order that the present appeal has been filed by the Revenue. 2. None appeared for the respondent though notice has been issued to them, however, respondent have filed cross-objection registered as E/CO/255/08. Heard Shri V.K. Saxena, learned Departmental Representative, who pleaded that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been imposed and in this regard, he cited the judgment of Hon Supreme Court in the case of Union of India v. Rajasthan Spinning Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.). 3. I have carefully considered the submissions of the learned Depart mental Representative and also the submission made by the respondent in their cross objection. The shortage of finished goods has not been dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the case of Union of India v. Rajasthan Spinning Weaving Mills (supra) has held that penalty under Section 11AC would be attracted if the element for imposition of penalty under this Section are present. Since, this is a case of clandestine removal, the provisions of Section 11AC would be attracted. In view of this, the impugned order setting aside the penalty is not correct. The same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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