TMI Blog2009 (10) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided in the case of Union of India v. Kataria Wires Ltd. [2007 (1) TMI 183 - MADHYA PRADESH HIGH COURT] wherein it was held that merely because of original and duplicate copy lost, claim not to be defeated especially when certified copy, issued by Superintendent - CENVAT Credit taken by the appellant on the strength of Xerox copy of invoice certified by the Range Superintendent, stands allowed. Penalty u/s 11AC - Held that: - when the issue of clandestine removal is decided against the appellant, equivalent amount of penalty is imposable against the appellants - although the appellants have paid the duty demand but failed to pay the interest on applicable rates within prescribed time limit, the benefit of the proviso of Section 11AC is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and penalty was confirmed on account of clandestine removal and a Cenvat Credit of Rs. 24,442/- was also disallowed to the appellant under Rule 12 of Cenvat Credit Rules, 2002 on the ground that original duty paid invoice was not produced. Penalty on the Director, Shri. Tilakraj Gupta was also imposed and the same was confirmed in the impugned order. Aggrieved by the same the appellants are before me. 3. The main issue involved in this case is shortage of finished goods and inputs which was detected by the team of Preventive Officers on their visit. 4. The Central Excise duty on such shortage was also paid by the appellant without any protest on being pointed out by the Preventive Officers. 5. Ms. Padmavati Patil, learned Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity, statement of suppliers etc. She, further, submits that credit of Rs. 24,442/- was taken by the appellants which was based on xerox copy of invoice certified by Range Supdt is admissible and to support her contention she placed reliance on the following judgements :- (a) Klockner Supreme - 2002 (140) E.L.T. 370 (M.P.) (b) Dhaulagiree Polyolefins - 2002 (147) E.L.T. 843 (T) (c) Kothari General Foods - 2002 (144) E.L.T. 338 (T) (d) Hindustan Lever Ltd. - 2002 (51) RLT 724 (T) (sic) (e) Ultramarine Pigments - 1996 (64) ECR 616 (T) = 1996 (84) E.L.T. 223 (T) (f) Hero Cycles Ltd - 2002 (149) E.L.T. 648 (T) (g) National Fertilizers Ltd. - 2002 (48) RLT 160 (T) 6. She further submits that the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly held in the case of Siemens Ltd. v. CCE, Calcutta - 1994 (70) E.L.T. 305. He further submits that Revenue is not required to prove their case with mathematical precision as it was rightly held in the case of Columbia Electronics Ltd. v. CCE, Indore - 2002 (143) E.L.T. 635 (Tri. Del). He placed reliance on D. Bhoormull - 1983 (13) E.L.T. 1546 wherein it was held that department is not required to prove its case with mathematical precision to a demonstrable degree. Further it was held that it is exceedingly difficult for the prosecution to prove fuels which are especially within the knowledge of the opponent or the accused as secrecy and stealth being its covering guards. He further relied on Greaves Cotton Ltd. - 2008 (225) E.L.T. 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Advocate in the case of Tarak Nath Gayen and Others (cited supra) the penalty liability on the legal representative cannot be fastened. The learned SDR has not argued on this point. I allow the appeal of Shri Tilakraj Gupta with this observation. 11. On the issue of clandestine removal, I find that there was no protest by the appellants that the stock taking was done on eye estimation and no actual weighment was done and the protest against the same was nowhere made by the appellants before issuing the show cause notice and the same was admitted by the appellants and accordingly, they paid the duty without any protest. I do not find any force in the arguments of the learned Advocate for the appellant, so, I confirm the duty demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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