2013 (11) TMI 1219

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....Squares etc. falling under Chapter 72 of the Central Excise Tariff Act, 1985. Their factory was visited by the Central Excise Officers on 10.08.2006. During the course of Joint Verification of the physical stock of the finished goods, the Officers noticed a shortage of 48.280 MT in comparison to the entry of stock in Daily Stock Account i.e. RG-I Register. The Appellant had accepted the said shortage in the stock and agreed to discharge applicable Central Excise duty on the same and tendered the Cheque No.469532 dated 10.08.2006 for Rs.1,38,676/-. Consequently, a show cause notice was issued to them on 07.05.2007 for appropriation of the duty paid and imposition of penalty under Section 11AC of the Central Excise Act, 1944. On adjudication,....

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....on, they had paid the duty involved on the said goods found short. In the statement of Shri Bishnu Poddar, Factory Manager of the Appellant Firm, though the shortage was accepted and duty was agreed to be paid, but nowhere it had been stated that the said quantity was removed from the factory clandestinely without payment of duty. The ld. Advocate further submitted that in absence of evidence of clandestine removal of goods from the factory, penalty under Section 11AC of CEA,1944 is unwarranted and unjustified. In support, he has referred to the judgment of this Tribunal in the case of Commissioner of Central Excise, Chandigarh vs. Shree Ganesh Steel Rolling Mills Pvt. Ltd., 2009(241)ELT 47(Tri.-Del.) and Galaxy Textiles vs. CCE, Vapi, 2011....

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....slightly more or less. At the time of clearance of the goods from the factory, the same were weighed at the Weigh-Bridge and in the respective excise invoices, the correct weight had been accordingly mentioned, on which duty was being paid by applying the transaction value per MT. I find from the statement of the employees, Shri Bhishnu Poddar recorded on 10.08.2006 that no admission of removal of goods clandestinely without payment of duty had been mentioned. The relevant question No.(8) and its answer is reproduced as below:-              Q.8. In the Joint Stock Verification of finished goods in your factory premises conducted by the visiting Central Excise Officers under our ....