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2015 (10) TMI 2195 - CESTAT AHMEDABAD

2015 (10) TMI 2195 - CESTAT AHMEDABAD - TMI - Evasion of duty - Clandestine removal of goods - Whether the case of clandestine removal can be held to be established on the basis of statement dated 12.09.2006 of Shri Rajesh R. Patel, Excise Executive and Authorised Signatory of the appellant - Held that:- There is no other corroborative evidence or statement given by any other person to substantiate that there was any clandestine removal on the part of the appellant. It has been rightly pointed o .....

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pect to the claim made by the appellant. During subsequent investigation conducted, by recording statement dated 11.08.2009 of Shri S.R.B. Nair, Chief Operating Officer and Director of the appellant, also explains the case of the appellant that there was no shortage of finished goods. - there is even no confessional statement of the appellant, because the very first statement at 12.09.2006 convey that duty was paid voluntary in good faith with a scope to explain shortages later. Rather the short .....

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nt investigations. In the absence of any other independent corroborative evidence and after perusal of the case records it is to be held that shortages and clandestine removal of the finished goods are not established and are solely based on presumptions and assumptions. - Decided in favour of assessee. - Appeal No. E/326/2010, E/11270/2013 - ORDER No. A/10894-10895/2015 - Dated:- 29-6-2015 - Mr. H.K. Thakur, Hon ble Member (Technical),J. For the Appellant : Shri Anand Mishra, Advocate For the R .....

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is statement dated 12.09.2006 stated that shortages found may be on accounting error with no clandestine intention to evade payment of duty and that he is not able to explain the shortages. It was also submitted that appellant is reversing the duty voluntarily in good faith with a scope to explain the same. 2. Appeal No. E/326/2010 has been filed by the appellant with respect to refund of ₹ 11,40,458/- paid during investigation. The said refund claim was returned to the appellant as premat .....

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e same was paid in good faith with scope to explain the shortages. Learned Advocate made the Bench go through the correspondence exchanged between the appellant and the department through letters dated 16.09.2006, 19.08.2009 and subsequent statement dated 11.08.2009 of Shri S.R.B. Nair, Chief Operating Officer and Director of the appellant, wherein he explained the shortages. It was the case of the appellant that the shortages detected by the officers of Central Excise during their visit on 11/1 .....

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d solely upon the statement, which can also not be said to be a confessional statement given by the appellant. 4. Shri S.K. Shukla (AR) appearing on behalf of the Revenue argued that the statement given regarding shortages of finished goods and later explanation given has to be considered as an afterthought. He relied upon the case law of Majestic Auto Limited vs. CCE, Ghaziabad [2004 (172) ELT 391 (Tri. Del.)]. 5. Heard both sides and perused the case records. The issue involved in the present .....

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ks about payment of an amount voluntarily made in good faith with a scope to explain the shortages. By a letter dated 16.09.2006 appellant, within a week s time of Panchnama, explained the department that there was no shortages as several materials are lying spread over everywhere in the factory premises, which are rejected as well as returned goods. No verification was made during investigation with respect to the claim made by the appellant. During subsequent investigation conducted, by record .....

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oluntary in good faith with a scope to explain shortages later. Rather the shortages detected during the visit of the officers of Central Excise were intimated as non-existing by a letter within a week from the date of visit. To reject the appellant s claim of no shortage of finished goods, a verification ought to have been done immediately. Learned AR relied upon the judgment of Majestic Auto Limited vs. CCE, Ghaziabad where the explanation was offered after two months and after physical verifi .....

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ations. In the absence of any other independent corroborative evidence and after perusal of the case records it is to be held that shortages and clandestine removal of the finished goods are not established and are solely based on presumptions and assumptions. This very Bench in the case of Zenith Fibres Limited vs. CCE, Vadodara held as follows:- 6. In the light of the above law laid down by the Apex Court, it has to be seen whether the ingredients of Section 11AC are satisfied in the present c .....

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