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TMI Blog2016 (3) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... idence has been brought on record by the respondents, the alleged shortage cannot held clandestine removal of goods - Appeal allowed. - E/66/2015-SM - Final Order No. 321/2016-CHD - Dated:- 22-3-2016 - Shri Ashok Jindal, Member (J) Shri Sujeet Bhadu, Advocate, for the Appellant. Shri G.R. Singh, AR, for the Respondent. ORDER The appellant is in appeal against the impugned order demanding duty along with interest and imposing penalty on the appellant. 2. The facts of the case are that on 17-8-2011 an investigation was conducted at the factory premises of the appellant and stock taking was done on average basis as per following description : Description Stock as per record Metric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities below but without considering merits of the case, both the authorities the demand of duty along with interest and penalty equivalent to the duty was imposed. Aggrieved from the said order, the appellant is before me. 4. The ld. Counsel for the appellant submits that during the course of investigation, to buy peace, the appellant paid duty along with interest and 25% of the duty as penalty as per Section 11A(5)(6) therefore, no proceedings were warranted against the appellant but Revenue has issued show cause notice, therefore, he submits that the appellant is contesting demand of duty. He further submits that the stock taking was done on average basis which is not the correct method and later on the appellant has explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and 25% duty as penalty to buy peace but the departmental officers in enthusiasm, issued the show cause notice to the appellant. Without appreciating the provision of Section 11A(5)(6)(7) of the Act which is reproduced as under :- (5) Where, during the course of any audit, investigation or verification, it is found that any duty has not been levied or paid or short levied or short paid or erroneously refunded for the reason mentioned in the clause (a) or clause (b) or clause (c) or clause (d) or clause (e) of sub-section (4) but the details relating to the transactions are available in the specified record, then in such cases, the Central Excise Officer shall within a period of five years from the relevant date, serve a notice on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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