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TMI Blog2015 (10) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... y with evidence. Further, I find that adjudicating authority has demanded duty on 111.82 MTs whereas the actual shortage was 102.476 MTs as per the SCN. I find that appellants are liable for payment of excise duty on the quantity of 102.476 MTs found short in their accounts on the date of stock taking. - appellant is liable for excise duty and it is restricted to actual shortage of 102.476 MTs found short during physical stock taking and the demand is upheld to that extent. Penalty is set aside. - Decided partly in favour of assessee. - Appeal No. E/159/2002 - - - Dated:- 18-3-2015 - R Periasami, Member ( T ), J. For the Appellant : Mr J Shankarraman, Adv. For the Respondent : Mr L Paneer Selvam, AC (AR) ORDER Per R P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6 months whereas the notice was issued on 1.7.1999 and no investigation has been done and there was no evidence submitted the department. He also submits that appellants have admitted actual physical stock quantity of 102.476 MTs. He submits that every shortage of quantity of finished goods cannot be attributed to clandestine removal as the department failed to bring out any evidence of documents or weighment or any documents. Since there was no suppression, extended period cannot be invoked and no penalty is imposable. He relied on the following decisions :- - J.C. Rolling Mills Pvt. Ltd. Vs CCE Kanpur 2012 (276) ELT 254 (Tri.-Del.) - CCE Nashik Vs Nashik Strips Pvt. Ltd. 2011 (264) ELT 576 (Tri.-Mum.) 4. On the other hand, Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs CCE wherein the Tribunal set aside penalty under Section 76 and also held that every shortage cannot be attributed in the case of clandestine removal. The case of CCE Nashik Vs Nashik Strips Pvt. Ltd. Para 5 6 of the order is reproduced below :- 5. Considering the facts that the stock taking was done on eye-estimation as recorded in the Panchanama and there is no specific allegation against the respondent by the Revenue that they have suppressed the fact with intent to evade duty. Mere accepting the stock taking on eye-estimation does not amount to suppression of facts although the respondent has agreed the duty liability, but to impose penalty the intention of the respondent to evade duty is also be ascertained. But in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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