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TMI Blog2015 (11) TMI 1595X X X X Extracts X X X X X X X X Extracts X X X X ..... and fittings falling under chapter 39 of CETA, 1985. Pursuant to a visit by the Central Excise officers of Anti-Evasion Wing on 14.07.2008, shortages in the physical stock of the finished goods/raw materials were noticed. Consequently, after recording statements and on completion of investigation, a demand notice was issued to them alleging clandestine removal of short quantity of inputs and finished goods without payment of duty of Rs. 2,92,146.31. On adjudication, the demand was confirmed and penalty was imposed under Section 11AC of Central Excise Act, 1944 on the appellant company and personal penalty of Rs. 2,92,146.31 on Shri Vijay Kumar Jalan, under Rule 26 of Central Excise Rules,2002. Aggrieved by the said order, Appeals wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice, nor in the impugned order. 4. Per contra, the ld.AR for the Revenue submits that the authorities below has categorically observed on the basis of evidences that the appellant could not account for/justify the discrepancy in the stock noticed during the course of stock taking exercise undertaken by the department in the presence of the representative of the appellant company. While rejecting the plea that productions of earlier days was not recorded in the RG-1 Register, resulting into difference in the stock, the adjudicating authority has observed at para 6 of the Order-in-Original that the visiting officers while arriving at the stock position took into consideration the production of 12.07.2008 and the discrepancy in stock was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on carried out on 12.07.2008 was duly considered by the departmental officers; therefore, the shortages could not be explained by the Appellant, consequently, the duty was rightly demanded and payable on the shortages. I do not find any justification to record a different finding than the concurrent findings on the facts recorded by the authorities below, in absence of cogent evidences and proper explanation on the shortages found during the course of joint stock taking operation, which the appellant failed to produce before the authorities below and also before this Tribunal. Consequently, the demand on shortages and the penalty on the Appellant company are justified. However, I find force in the contention of the ld. Advocate that while c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the case of the assessee is squarely covered by the explanation to Section 11AC. The Tribunal also noted that the duty determined under Section 11AC(2) was subsequent to the year 2000 and, therefore, the case would be covered by the explanation to Section 11AC of the Central Excise Act. 16. When no option was given by any of the adjudicating authorities after determination for payment of duty, interest and penalty of 25% of the duty, what all Tribunal had done, pursuant to the direction in remand order, was to avail option to the respondent-assessee and this was in consonance with the ratio laid down by the Court time and again." 6. In view of the ratio laid down in the aforesaid case, the appellant company are entitled to pay 25% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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