2010 (8) TMI 893

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..... RDER The short point involved in this appeal is when the goods are found in the records of the dealer but not physically found, issuance of no invoice by that dealer for the quantity not found, can bring penal consequence to such dealer. Ld. Commissioner (Appeals) in para 6 of the order came to a conclusion that it is a clandestine removal. 2. Ld. Counsel appearing on behalf of the appellan .....

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..... 4. Heard both sides and perused the records. 5. There is no dispute that on 12-4-2006 physical inventory revealed shortage of stock in the hands of the dealer-appellant. The dealer is not a manufacturer. There is no evidence on record to show that there was any invoice issued in respect of the goods in question. In absence of any invoice issued, cenvat credit has not been passed on. Th .....

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..... e features are absent, because penalty is prescribed by law, that cannot be ipso facto imposed. It may be stated that penal proceedings are quasi criminal in nature. Clear intention of evasion or an intention to cause evasion through anybody else should be brought to record. That is absent. Therefore, the appellant should succeed and the order of the authority below is set aside. (Dictated & Pron .....

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