TMI Blog2013 (10) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... finished product without any cogent evidence of clandestine removal is not sufficient to allege clandestine removal and second ground of setting aside of penalty is that the entire disputed amount of duty was paid before issue of show cause notice - As regards the first ground that the evidence on record is not sufficient to prove clandestine removal - stock taking had been done in presence of the Authorised Signatory of the Assessee and at that time, no objection has been raised about manner of stock taking and on the contrary, the Authorised Singatory had accepted the shortage and had accepted that the goods might have been removed from the factory by the staff of factory without issue of invoices and without payment of duty. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of which, they checked the stock of finished products - Acid Slurry and Spent Acid in storage tanks. The quantity of Acid Slurry stored in tanks was determined by the officers and the same was found to be 14417 kg. less than the balance recorded in the RG-I Register. The duty involved on the goods found short was Rs . 1 ,17,878 /-, which was paid by the respondent. At the time of stock taking, Shri Vikas Bhartiya , Authorised Signatory of the respondent company, was present and on being asked about the shortage, he in his statement dated 27.06.2006 admitted the shortage and explained that the goods found short must have been removed from the factory by the staff of factory without payment of duty and without issue of invoices in his absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside of the Commissioner (Appeal)'s order with regard to penalty on the respondent company and their authorized signatory, Shri Vikas Bhartiya , and restoration of the order-in-original passed by the Assistant Commissioner on the point of issue of penalty. 3. Heard both the sides. 4. Shri R.K. Mishra, Departmental Representative, assailed the impugned order by reiterating the grounds of appeal and pleaded that the shortage of the finished products, which is about 14417 kg., had been determined by the dip reading and at that time the authorised signatory of the respondent did not raise any objection regarding the shortage and on the contrary, had accepted the same stating that the goods found short must have been cleared from the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no merit in the Revenue's appeal. 6. I have considered the submissions from both the sides and perused the records. 7. As regards preliminary objection that there was no Committee of Commissioners inasmuch as review order had not been signed by both the Commissioners on the same date, on going through the Review order, it is seen that one of the Commissioners has not put the date and only signed. From this, it cannot be inferred that both the Commissioners had not signed on the same date, moreover in terms of the judgement of the Allahabad High Court in the case of present respondent reported in 2013 (290) ELT 217 (Allahabad) , there are no statutory rules prescribing that Commissioners will sit on same day at same time an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, no objection has been raised about manner of stock taking and on the contrary, the Authorised Singatory , Shri Vikas Bhartiya had accepted the shortage and had accepted that the goods might have been removed from the factory by the staff of factory without issue of invoices and without payment of duty. If this is so, the respondent at this stage, cannot allege that there was no shortage. In my view, looking to the quantum of shortage, the only conclusion, which can be drawn, is that the goods found short have been removed without payment of duty and without invoices and as such no other evidence is required. Once the fact of clandestine removal is upheld, in view of the Apex Court's judgement in the case of Rajasthan Spinning Weavi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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