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TMI Blog2016 (9) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice, without any retraction, will have to be considered as an after-thought under proper legal advice. By admitting the shortages and not coming forward to explain the same, blocks the investigation. In the case of Majestic Auto Ltd. v. CCE [2004 (7) TMI 136 - CESTAT, NEW DELHI] CESTAT held that demand with respect to shortages can be confirmed when no tangible evidence and explanation was offered by the noticee. It is also made clear in this case law that there is no need for the department to produce any tangible and positive evidence to prove clandestine removal when Appellant has admitted the shortages and does not come forward to explain the shortages. No contrary judgement has been brought on record by the Appellant. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved from the factory. That Appellant has cleared 181783.965 MTs of finished TMT bars and percentage of difference comes to only 0.033%. It was strongly argued by the learned Advocate that there is no evidence of clandestine removal from Appellant s factory and the case cannot be made only on the basis of statements which do not admit clandestine removal of the goods. It was thus argued by the learned Advocate that Appeal filed by the Appellant may be allowed. Alternately it was also argued by the learned Advocate that Adjudicating authority has not extended the Appellant option of 25% reduced penalty under Section 11AC of the Central Excise Act, 1944. That if on merits Appellant s arguments are not considered then option of 25% reduced pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the reason behind the shortages and that Appellant will scrutinize the shortages and will try to find out the reasons behind such shortages. Appellant never reverted back to the investigation before the issue of show cause notice that shortages found were reconciliable and that in fact there was no shortages in the stock of finished goods. A different stand taken after the issue of show cause notice, without any retraction, will have to be considered as an after-thought under proper legal advice. By admitting the shortages and not coming forward to explain the same, blocks the investigation. It has been discussed in para 5.6 of Order-in-Original dated 30.09.2008, that in the case of Majestic Auto Ltd. v. CCE [2004 (172) ELT 391 (Tri.-Del. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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