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M/s. Shyam Steel Industries Ltd. Versus Commissioner of Central Excise & Service Tax, Bolpur

2016 (9) TMI 978 - CESTAT KOLKATA

Demand alongwith interest - Shortage of TMT bars - such shortages were accepted by the Appellant in physical stock-taking, but never admitted that the shortages were clandestinely removed from the factory - no evidence of clandestine removal from Appellant's factory - only statement of Shri Dipak Choudhary, Manager of the Appellant was available - Held that:- appellant never reverted back to the investigation before the issue of show cause notice that shortages found were reconciliable and that .....

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lanation was offered by the noticee. It is also made clear in this case law that there is no need for the department to produce any tangible and positive evidence to prove clandestine removal when Appellant has admitted the shortages and does not come forward to explain the shortages. No contrary judgement has been brought on record by the Appellant. Therefore, duty has been correctly confirmed against the Appellant along with interest. - Non-extension of option of 25% reduced penalty - Sect .....

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Per Shri H. K. Thakur The present Appeal has been filed by the Appellant against Order-in-Appeal No.52/BOL/2013 dated 09.05.2013 passed by the Commissioner of Central Excise(Appeals), Kolkata-III as first appellate authority. Under this Order-in-Appeal dated 09.05.2013 first appellate authority has upheld the Order-in-Original dated 30.09.2008 passed by the Adjudicating authority. 2. Shri S.Bhowmik (Advocate) appearing on behalf of the Appellant argued that during a physical stock verification .....

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the learned Advocate that there is no evidence of clandestine removal from Appellant s factory and the case cannot be made only on the basis of statements which do not admit clandestine removal of the goods. It was thus argued by the learned Advocate that Appeal filed by the Appellant may be allowed. Alternately it was also argued by the learned Advocate that Adjudicating authority has not extended the Appellant option of 25% reduced penalty under Section 11AC of the Central Excise Act, 1944. Th .....

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the investigation explaining the shortages. That further while answering question No.6 Shri Dipak Choudhary submitted that duty liability on shortages appellant will pay the Central Excise duty. That no retraction of the statement was made by the Appellant during the course of investigation and only in reply to the show cause notice Appellant took a different stand which is an after-thought. Learned AR strongly defended the Order-in-Appeal dated 09.05.2013 passed by the first appellate authority .....

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stock verification. It was also stated that he is not in a position to explain the reason behind the shortages and that Appellant will scrutinize the shortages and will try to find out the reasons behind such shortages. Appellant never reverted back to the investigation before the issue of show cause notice that shortages found were reconciliable and that in fact there was no shortages in the stock of finished goods. A different stand taken after the issue of show cause notice, without any retr .....

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