TMI Blog2013 (12) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... ed clandestinely without payment of duty - Shortages found in the stocks could be a good ground for raising suspicion but it should be corroborated by the confessional statement of the assessee and/or other evidences that such shortages were clandestinely removed also - There is also no evidence of seizure of any goods clandestinely cleared by the appellant - the shortage of finished goods by itself could not, unless it is related to clandestine removal of finished goods for which there was no material evidence, infer evasion of Excise duty - It is also an established law that any presumption, howsoever strong, cannot take the place of an evidence - The ingredients as contained in Section 11AC of Central Excise Act, 1944 are not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions by an order of this Court, the Tribunal was duty bound to consider the same and render its decision with reference to and in light of the law laid down by the Apex Court. When a lower Court or quasi-judicial authority of the Tribunal is directed by the High Court to decide a question in a particular manner or with reference to a particular decision, such lower court of authority would be required to decide the issue in that manner only. The cryptic approach, as is reflected from the impugned order, cannot be justified. It is always permissible for the Tribunal to take a particular view and arrive at its own conclusion, however, the order it may pass has to be in conformity with the directions issued by this Court while remanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajasthan Spinning Weaving Mills Others [(2009) 92 RLT 691 (SC)]. According to remand order, dt.23.06.2009, the case was decided by this Bench as per Order No.A/399/WZB/AHD/2010, dt.29.04.2010 which was again agitated by the Revenue before CESTAT by filing Tax Appeal No.2330 of 2010. It is against second remand dt.29.10.2012 that this appeal was listed. 3. Shri Rahul Gajera, (Adv.) appearing on behalf of the appellant argued that the total amount of Rs. 1,40,898/- was paid by the appellant before the issue of show cause notice and no investigation has been made later to establish that there was any clandestine removal of the goods found short in the factory. He made the Bench go through the appellant's defence made before the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the directions given by Hon'ble Gujarat High Court in their remand orders dt.23.06.2009 in Tax Appeal No.1275 of 2006 and dt.29.10.2012 in Tax appeal No.2330 of 2010. The crux of the remand proceedings is that CESTAT should examine the applicability of Section 11AC of the Central Excise Act, 1944 to the facts and circumstances of the appellant's case in the light of Apex Court's order in the case of UoI Vs. Dharmendra Textile Processors (supra) and UoI Vs. Rajasthan Spinning Weaving Mills Ors (supra). 5.1 Hon'ble Supreme Court in the case of Uol Vs. Dharmendra Textile Processors [2008 (231) ELT 3 (SC)] in Para 26 27 of its order dt.29.09.2008 held that in Union Budget of 1996-1997, Section 11AC of the Act was introduced which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11AC are satisfied in the present case or not. It is the case of the appellant that they have only admitted the shortages and the same could be as a result of accumulated losses over a period or for any other reason. It was argued by the appellant that they have never cleared these shortages clandestinely. Investigation in the present case has not established that shortages found in fact were cleared clandestinely by the appellant. There is no confessional statement of the appellant that shortages were cleared clandestinely without payment of duty. Shortages found in the stocks could be a good ground for raising suspicion but it should be corroborated by the confessional statement of the assessee and/or other evidences that such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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