TMI Blog2017 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in the facts and circumstances of this case - Decided in favor of the assessee. - E/2596/2010-EX [SM] - A/70111/2017SM[BR] - Dated:- 29-11-2016 - Mr. Anil Choudhary, Member (Judicial) Shri D. K. Deb, .Assistant Commissioner, (AR), for Appellant Shri Rajesh Chhibber, Advocate for Respondent ORDER Per Anil Choudhary The present appeal is filed by the Revenue against the Order-in-Appeal No. 73-CE/MRT-I/2010 dated 31/05/2010 passed by Commissioner of Customs Central Excise (Appeals), Meerut. 2. The issue in this appeal is whether on the apparent shortage of stock found in the factory premises of the respondent with respect to raw material and finished goods found at the time of inspection, whether in absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL 1279181.35 4. The Authorized Manager or the Accounts Manager who was present at the time of inspection on query said that he was unable to explain the discrepancy found immediately and also voluntarily offered to deposit the duty towards the alleged shortage found, amounting to ₹ 12,79,181.35/-. Thereafter the present Show Cause Notice was issued as it appeared to Revenue that the respondent-assessee has failed to maintain proper accounts of receipt of inputs, production, storage clearance of output correctly, so as to give the actual receipt of inputs for production of the finished goods during the relevant period. According, due to alleged shortage of finished goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also imposed penalty on the presumption of clandestine removal. Accordingly, the Additional Commissioner confirmed duty amounting to ₹ 11,73,990/- worked out on the shortage of finished goods and dropped the proposed demand ₹ 1,05,192/- proposed on the shortage of raw material. Penalty on this was also imposed on the respondent-assessee under 25(1)(a) (b) of Central Excise Rules, 2002. 5. Being aggrieved with the said order, Cross Appeals were filed. The respondent-assessee filed Appeal No. 245-CE/APPL/MRT-I/2010, which are decided by Order-in-Appeal No. 241 CE/MRT-I/2010 dated 26/02/2010, wherein the demand of duty and its appropriation was upheld. The issue of penalty was also discussed and the penalty imposed of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal. The only case of the Revenue is that it is not disputed by the respondent-assessee regarding valuation of stock verification made by the Revenue. Accordingly, I hold that no case of clandestine removal and clandestine production have been made out against the respondent-assessee in the facts and circumstances of this case. Accordingly, there is no case made out for imposition of penalty under Rule 25(1) of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944. In this view of the matter, I set aside the penalty retained by the Commissioner Appeals, and/or set aside the penalty fully. 9. Hence, the appeal of Revenue is dismissed. The respondent-assessee will be entitled to refund of tax and penalty already d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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