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2016 (3) TMI 195 - CESTAT KOLKATA

2016 (3) TMI 195 - CESTAT KOLKATA - TMI - Penalty under section 11AC - clearance against the dummy challan - clandestine removal - Held that:- The appellant though required to pay the duty/CENVAT Credit which they have already paid, they are not liable to be visited with harsh penalty under section 11AC of Central Excise Act, 1944.

In the case of alleged clearance against the dummy challan dated 17.01.2007, find force in the contention of the appellant that in absence of any evidence .....

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e 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 in the show cause notice. Accordingly, confirmation of penalty canno .....

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DER Per Dr.D.M.Misra. 1. This is an appeal filed by the Revenue against Order-in-Appeal No.21/Bol/2012 dated 27.01.2012. 2. Briefly stated the facts of the case are that on a visit of the factory of the respondent on 18.01.2007 discrepancies were noticed in the stock of finished goods as well as raw materials involving total duty/CENVAT Credit amounting to ₹ 13,82,054. The respondent paid the said amount immediately within a fortnight except for ₹ 44,042/- involving alleged removal o .....

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. 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, h .....

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vidence nor explanation about the said shortage of goods noticed during the surprise stock-taking by the officers. However, he has vehemently argued that mere shortage in stock cannot by itself be construed that the goods were cleared clandestinely without payment of duty. Further, he submits that there was no clearance of the goods reflected in the challan dated 17.01.2007, even though all requirements relating to clearance of goods were mentioned in the said document. It is his claim that the .....

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ighing 253.763 MT involving total duty of ₹ 6,21,212/- and various raw materials like sponge iron, pig iron and scrap totally weighing 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 .....

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