2010 (12) TMI 203

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....s under Rule 3 of Cenvat Credit Rules, 2002.  On 27.12.2005, the respondent factory was visited by the Central Excise Officers. They checked the stock of finished goods as well as raw material sponge iron and while no discrepancy was found in the stock of finished goods in respect of sponge iron, shortage of 34.200 MT, involving cenvat credit of Rs.50,791/- was found.  At the time of stock taking, Shri Narender Jaiswal, authorised signatory of the respondent, was present and his statement was recorded under Section 14 of Central Excise Act, 1944 on the spot wherein while admitting the shortage of sponge iron, he stated that while he is ready to pay duty involved on the shortage of sponge iron, the shortage may be due to moisture i....

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....t of Bombay in the case of Gaurav Mercantile Ltd. reported in 2005 (190) ELT 11 (Bom).  He also observed that there is no corroborative evidence in this case to conclude as to whether the shortage was due to clandestine removal.  It is against this order of setting aside of penalty that the Revenue has filed this appeal against the order of the Commissioner (Appeals). In respect of the Revenues appeal, the respondent have filed cross objection. 3. None appeared for the respondent, in spite of notice had been issued well in time.  I find that on earlier occasion on 08.11.2010, this matter had been adjourned on the request of the respondent Counsel that he was busy before the Honorable High Court and prior to this also, on 0....

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.... of Rashtriya  Ispat Nigam Ltd. (supra) and is not applicable to the facts of this case various judgements of Honrable High Courts cited in the  order of the Commissioner (Appeals) are no longer a good law in view of judgement of Honrable Punjab & Haryana High Court  in the case of CCE vs. Machino Montell (P) Ltd. reported in 2006 (4) STR 177 (P&H) and also the judgement of Honrable Supreme Court in the case of Rajasthan Spinning & Weaving Mills Ltd reported in 2009 (238) ELT 3 (SC) and that in this case, when the elements of imposition of penalty under Section 11AC are present, there is no discretion left with the adjudicating authority and the penalty has to be imposed.  In view of this, he pleaded that the impugned or....