TMI Blog2018 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty involved was to the extent of ₹ 1,15,817/-, the redemption fine from ₹ 2,79,440/- to ₹ 1,00,000/-. Clandestine removal - shortage of stock - Held that: - It is settled that the findings of clandestine removal are required to be based on the positive and tangible evidence and cannot be upheld on the basis of assumption and presumption - Reliance in this regard is made to the decision of the Hon’ble High Court of Allahabad in the case of Commissioner of Central Excise, Kanpur Vs. Minakshi Castings [2011 (8) TMI 896 - ALLAHABAD HIGH COURT] laying down that the shortages of finished goods without any evidence of clandestine removal, cannot lead to inference of evasion of duty - demand set aside. Penalty on Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed on Shri Amit Jain, Director of the manufacturing unit. 2. After hearing both the sides, I find that the appellant M/s Premier Ispat Ltd, Kanpur, is engaged in the manufacture of M/s Bars. During the course of transit checks, the Central Excise Officers intercepted 3 trucks loaded with M.S. Bars outside the factory premises of the said appellant. The drivers of the said trucks admitted that the goods were loaded from the said appellant's factory but on being questioned, produced invoices issued by one trader M/s Jai Maa Sharda Enterprises, Koyala Nagar, Kanpur. As the officers entertained a view that the said goods were loaded from the appellant's factory without any invoices issued by them, they searched the factory prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant by way of issuance of a show cause notice dated 12.10.2011 raising demands in respect of the loaded goods as also demands in respect of the shortages detected, The notice also proposed confiscation of the goods and imposition of penalties. The said notice stands culminated into an order passed by the Original Adjudicating Authority confirming the demands alongwith interest and confiscating the goods with redemption fine and imposing penalties. The order passed by the Original Adjudicating Authority stands upheld by Commissioner(Appeals). The Appellate Authority, however, reduced the penalty on Shri Amit Jain to ₹ 50,000/-. The said order of Commissioner(Appeals) is impugned before Tribunal. 6. I have heard Shri Vaibhav Dixit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Maa Sharda Enterprises as to from where the said goods were purchased or came into existence. As such, I find that the goods in question were cleared from the appellant M/s Premier Ispat Ltd., with payment duty, thus, justifying confirmation of demand of duty ₹ 1,15,817/- in respect of the same, Penalty to the said extent i.e. equivalent to the duty evaded is also upheld, in terms of the provisions of Section 11 AC of the Act. As regards the confiscation of the same, I agree with the Iower authorities that inasmuch as the seized goods were non-duty paid their confiscation has to be upheld. However, keeping in view that the duty involved was to the extent of ₹ 1,15,817/-, I reduce the redemption fine from ₹ 2,79,440/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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