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2015 (11) TMI 595 - CESTAT MUMBAI

2015 (11) TMI 595 - CESTAT MUMBAI - 2015 (330) E.L.T. 737 (Tri. - Mumbai) - Duty demand - Clandestine removal of goods - Commissioner dropped the penalty on the ground that the goods have lost in natural disaster i.e. flood and it is not the case of clandestine removal - Held that:- It is not the case of clandestine removal nor any act on the part of the respondent to defraud the department with intension to evade payment of duty. The goods on which demand was confirmed has not been cleared clan .....

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e orders of the Commissioner (Appeals) - Decided against Revenue. - APPEAL NO. E/788/10, E/789/10 & E/CO/22/10 - Final Order Nos. A/2468-2470/2015-WZB/SMB - Dated:- 2-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) For the Respondent : Shri. Sachin Chitnis, Advocate ORDER Per : Ramesh Nair These two appeals of the Revenue directed against Orders-in- Appeal Nos. VSK/20/MV/2010 dtd. 18/2/2010 and VSK/22/MV/2010 dated 18/2/2010 passed .....

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as cleared on payment of duty. The department was of view that remission of duty was not granted on the finished goods, duty was payable therefore show cause notices were issued, wherein the demand of Cenvat Credit of ₹ 1,79,423/- and 16,82,222/- respectively proposed. In the order-in-Original, demand of duty, equal amount of penalty and interest was confirmed. Aggrieved by both the said orders-in-original Nos. 89/27/DC/MLD/08 dated 30/4/2008 and 41/07 /V/ 2008 /JC/ KNP dated 1/4/2008, the .....

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dicating authority has failed to provide any evidence that inputs were clandestinely removed, when the fact that loss on account of natural disaster which is not disputed. Aggrieved by the said impugned order the Revenue is before me only for imposition of penalty. 4. Shri Ashutosh Nath, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue submits that respondent has not informed the department regarding the loss due to the flood and they have suo moto cleared the damaged input as s .....

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was a natural disaster in Mumbai which is well known to the every citizen of country. Loss of the goods in the flood cannot be construed as clandestine removal and no malafide can be alleged on the respondent, therefore Ld. Commissioner(Appeals) considering this undisputed aspect, dropped the penalty which deserves to be maintained. He further submits that the matter of remission of duty is still pending before the Tribunal, therefore in overall fact and circumstances of the case Ld. Commissione .....

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e lost in natural disaster i.e. flood and it is not the case of clandestine removal. The relevant finding of the Ld. Commissioner (Appeals) is reproduced below: 10. I have gone through the facts of the case including the oral and written submissions made by the appellant. I find that this is a case where finished goods were destroyed/damaged by the floods. Some of the damaged finished goods were defaced and cleared as scrap on payment of duty. I find that the appellants had applied for remission .....

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equivalent penalty under Section 11AC of Central Excise Act, 1944, was not warranted. 11. In this case of the finished products were defaced and the resultant scrap was cleared on payment of duty. The original adjudicating authority has failed to establish in his order that there was any intent to evade duty as required in terms of the Hon ble Supreme Court s decision in the case of Rajasthan Spinning and Weaving Mills Ltd. Vs. CCE Jaipur reported in 2003(152) ELT 232 (SC)]. I, therefore, find n .....

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