TMI Blog2017 (5) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, there is no material on record of the clandestine removal of the goods. So, the imposition of penalty u/s 11AC of the CEA, 1944 is not warranted. Demand of duty with interest upheld - penalty set aside - appeal allowed - decided partly in favor of appellant. - Excise Appeal No.75783/14 - Order No. FO/75657/2017 - Dated:- 14-3-2017 - Shri P. K. Choudhary, Judicial Member Sri M.K. Guha Neogi, Consultant for the Appellant Sri S.S. Chattopadhyay, Supdt. (A.R.) for the Respondent ORDER Per: Shri P. K. Choudhary The appellant is engaged in the manufacture of Non Alloy Steel Ingot falling under Sub-heading No.72061090 of the CETA, 1985. The officers of the Anti Evasion Unit visited the factory on 18/3/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt slip was therefore prepared. The shortage shown was not on actual weighment basis. Shri Birendra Choudhury also stated in his affidavit that the officers compelled him to put his signature on the said stock verification report. Sri Baidyanath Paul, Director of the appellant company has also filed an affidavit dated 13.09/2010 wherein he has stated that the shortage was recorded without making any physical weighment of the finished goods. He also stated that the officers arbitrarily quantified the shortage and pressurized him to give ₹ 5.00 Lakhs as an ad hoc payment towards the duty liability. It is also contended by the Ld. Consultant that there has not been any shortage in the physical quantity of the finished products. He relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck was prepared in presence of the representatives of the appellant. No dispute was raised. On the other hand, the representative of the appellant signed this report. The contention of the Ld. Counsel that no proper weighment was done is without any evidence, which cannot be accepted. Therefore, the demand of duty alongwith interest is justified. 6. But I find force in the submission of the Ld. Counsel in respect of imposition of penalty. It is well settled by various decisions of the Tribunal and the High Courts that mere shortage of the goods ascertained during stock verification, would not be treated as clandestine removal of the goods. There is required positive act to establish clandestine removal of the goods. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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