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TMI Blog2010 (2) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide answer immediately to the stock discrepancy found in the course of investigation. However, he stated that on studying the record of production and sale, he can provide a satisfactory answer for the discrepancy. In the recorded statement dated 13-2-05, he also stated that he is ready to pay Central Excise duty on the cartons found to be absent. But because the date on which the statement was recorded being Sunday and bank is closed, he shall deposit the duty on Monday or a date after and shall inform to the Department. The statement recorded from Shri Singh to the above effect was under Section 14 of Central Excise Act, 1944 and investigation was made in the presence of panchas through panchnama. 2. Learned Adjudicating Authority noticed that the respondent by its letter dated 14-2-05 informed to the Deputy Commissioner of Central Excise, Fatehgarh about manufacture of 480 cartons on 12-2-05 which was shifted to the godown in the morning of 13-2-05. He further noticed that the respondent never came forward with a copy of this letter nor sent any letter to this effect to the investigating team which should have been done. Therefore, he was of the view that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of defence in future without coming out clean hands. Therefore, blemish conduct of the appellant surfaced. Learned Commissioner brushing aside the preponderance of probability, simply went by the fiction of burden of proof holding that same was not discharged by Revenue. He further submits that when the Revenue could find that in the recorded statement of 13-2-05, a promise was given to Investigation to satisfy them with the answer in relation to discrepancy, Revenue has itself discharged its onus of proof. Onus of proof when discharged, burden of proof fall on the Respondent. Therefore, preponderance of probability comes to rescue of Revenue to hold against the Respondent. The order passed by the learned Commissioner (Appeals) does not stand in the eyes of law. Learned DR relied on the judgments in the case of CCE, Chandigarh v. Nabha Steels Ltd. reported in 2004 (169) E.L.T. 345 and CCE, Indore v. Ratlam Wires Pvt. Ltd. reported in 2004 (174) E.L.T. 198. 5. Learned authorized representative for the Respondent opposed the pleading of Revenue on the ground that although Respondent has not come out immediately to explain the discrepancy to Investigation, there was no discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out after 2 days of investigation. Instead of reaching the same to Investigation, that was filed before Adjudicating Authority. No where that letter shows that the admitted fact of shortage of stock or promise to make payment of duty on the stock shortage was retracted. This letter was written by one Shri Lakshi Narain Agarwal to the Deputy Commissioner of Central Excise, Fategarh. The Respondent had no evidence to show that Shri Krishna Bir Singh was unaware of the facts. There was requirement that shortage of goods was bound to be explained as per statement recorded under Section 14 of Central Excise Act, 1944. Investigating agency was different from Adjudicating Authority. There is no evidence to show that the Respondent has come out with clean hands to inform the Investigating agency to examine its record which was claimed to be reliable evidence in the statement dated 13-2-05 recorded from Shri Krishna Bir Singh. Shri Singh stated in his oral evidence that all other records of production and sale shall be verified subsequent to explaining the discrepancy. But no answer was given to the Investigating agency at any time even during adjudication. Rather, Investigation was put in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Uni Socks v. CCE, Hyderabad (supra). The case was of 100% EOU and shortage of socks was not examined with reference to stock lying in second godown. In that case, the goods explained to have been in second godown was not verified, although insisted by assessee for which the matter was decided in favour of the assessee. But in the present case, when the statement was recorded on 13-2-05, the Respondent did not came out to invite Investigating team to inspect the packing section of factory. There was no intimation of 14-2-2003 given to investigation. Accordingly, this decision is misplaced by Respondent. 9. Silence of the respondent demonstrates that investigation was deliberately prevented to form a proper opinion on the matter. Preventing the investigation, the respondent has caused prejudiced to itself. It is an established principle of law that Revenue need not establish its case by mathematical precision. In this case, although there was no direct evidence of clandestine removal came to record, but the evidence demonstrated that the tobacco product was removed from factory for no explainable reason. No inference was drawn by learned Adjudicating Authority by me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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