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TMI Blog2009 (9) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... n the presence of authorized signatory and the Production Manager admitted the shortage without raising any objection regarding correctness of quantities mentioned in the memo prepared by the Revenue Official in respect of stock position and hence, I find no infirmity in the impugned order whereby the demand is confirmed. In respect of the imposition of penalty under Section 11AC of the Central Excise Act, I find that there is no evidence on record that the goods were cleared clandestinely. In the decisions relied upon by the appellants, the Tribunal held that in case the goods found short regarding which the duty is confirmed and in the absence of any evidence regarding clandestine removal of the goods of the appellants, penalty under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants is that no physical weighment was done. It is only on eye estimation, the Revenue officials came to the conclusion that there was shortage of finished goods. The contention is that there was some finished goods approximately 16 MT in loose condition and no actual weighment was done in respect of the goods found In loose condition. The contention is that in the circumstances, the demand on the ground of shortage is not sustainable. The appellants also submitted that it is not a case for imposition of penalty under Section 1 of the Central Excise Act. Section 1 provides that in case the duty has not been paid or levied or has been short-levied or short-paid by reason of fraud, any willful mis-statement of suppression of facts or contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the factory. There was no duty paying documents covering such goods. 5. I find that in this case, the physical verification was conducted in the presence of authorized signatory and the Production Manager admitted the shortage without raising any objection regarding correctness of quantities mentioned in the memo prepared by the Revenue Official in respect of stock position and hence, I find no infirmity in the impugned order whereby the demand is confirmed. In respect of the imposition of penalty under Section 11AC of the Central Excise Act, I find that there is no evidence on record that the goods were cleared clandestinely. Certain goods were found short and the contention is that the appellants tried to explain the shortage by say ..... X X X X Extracts X X X X X X X X Extracts X X X X
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