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2016 (11) TMI 354 - ALLAHABAD HIGH COURT

2016 (11) TMI 354 - ALLAHABAD HIGH COURT - TMI - Clandestine removal of molasses for open market sale - Held that:- When appellant contended that shortage might be due to some fault of employee, the factum that it was not within his knowledge, consent or approval was also to be proved by appellant. Even otherwise, if shortage was due to some negligence on the part of employee, the employee is also an agent of appellant, for any act committed by employee, appellant, being principal is responsible .....

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at some other point of time, would not help appellant and, therefore, question 1 is also answered against appellant. - Central Excise Appeal No. 21 of 2010 - Dated:- 11-7-2016 - Hon'ble Sudhir Agarwal And Hon'ble Kaushal Jayendra Thaker, JJ. For the Appellant : Shakeel Ahmad For the Respondent : S. P. Kesarwani,Vks Raghuvanshi ORDER 1. Heard Sri Shakeel Ahmad, learned Counsel for appellant and Sri Krishna Agrawal for respondent. 2. This appeal under Section 35-G of Central Excise Act ha .....

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1995 by City Magistrate, no significant difference was noticed? (ii) Whether upon the facts and circumstances of the case the Tribunal was justified in absence of any evidence of clandestine removal of open market sale, the Tribunal was justified in allowing the condonation to the extent of 2% of the stock of 12972 qtls. stored in Tank No.2?" 4. Sri Shakeel Ahmad, learned Counsel for appellant, contended that there was no evidence whatsoever to show that there was a clandestine removal of m .....

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ant since it was only the appellant and it's agent, who were in the capacity to remove molasses. Appellant did not dispute actual shortage but tried to explain shortage in the grounds of appeal filed before Commissioner (Appeals) that shortage was due to some miscreant employees of the factory, who may have left the valve connected with the tank open and pipe line near molasses weighment tank. This explanation shows that shortage in molasses was not seriously disputed by appellant and instea .....

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olasses was admitted by appellant but it tried to explain that it was on account of fault on the part of some employees and is not a clandestine removal. This explanation was to prove this fact hence onus lay upon appellant and not the department for reason that shortage was admitted and reason of shortage was and could have been within the knowledge of appellant. Since it failed to discharge it's burden, authorities below were justified in drawing an inference against appellant. 6. Learned .....

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