TMI Blog2016 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... officers in making necessary enquiry about the said dummy challan, so as to ascertain whether the goods mentioned in the said challan were in fact cleared to the consignee mentioned in the said challan or otherwise. Also, from the statements recorded, find that nowhere the said question was asked to the Manager or the Director by the investigating officer. In these premises, it is difficult to hold that the goods mentioned in the said challan dated 17.01.2007 were cleared clandestinely without payment of duty. Further, find that penalty was imposed under section 11AC of Central Excise Act, 1944 by the adjudicating authority and confirmed by the Ld. Commissioner (Appeals). Penalty was not confirmed under any other provision nor also invoked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and allowed the appeal. Aggrieved by the said order, the Revenue is in appeal before this forum. 3. The ld.AR for the Revenue assailing the impugned order-in-appeal submitted that the ld.Commissiner(Appeals) has ignored the fact that there was shortage in the finished stock of goods as well as in the stock of principal raw materials during the course of visit of the officers on 18.01.2007. He submits that the appellants could not explain satisfactorily about the shortage of goods which would indicate that the goods found in short were cleared clandestinely without payment of duty. Further, he has submitted that the appellant could not explain the reason for non-clearance of goods mentioned in the challan dated 17.01.2007 as claimed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 480.660 MT involving CENVAT Credit of ₹ 7,16,800/- were found short. On recording the statement of the factory manager Shri Subhash Agarwal on the same day and also later no proper explanation could be furnished by the respondent. Similarly even after eight months from the date of said visit on recording the statement of Shri Barun Patwari, though he has admitted to the said shortages, but could not give any proper explanation stating that the duty/CENVAT Credit involved in such shortages had been made good by them. In these circumstances, it cannot be said that the confirmation of duty/CENVAT Credit on the shortages of stock of finished goods/raw materials could be said to be unsustainable in law. However, simultaneously, it also c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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