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TMI Blog2017 (7) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise authorities separately. On 30.07.2001, the Central Excise Officers of Head Quarter, Anti-Evasion Unit visited the appellant's factory premises and conducted stock verification and also seized various records. A show Cause Notice dated 30.03.2003 was issued proposing demand of duty of Rs. 1,17,40,607/- alongwith interest and to impose penalty on the ground of clandestine removal of finished goods and shortage of cenvat inputs. By the impugned order, the Adjudicating Authority confirmed the demand of duty of Rs. 80,323/- alongwith interest and imposed penalty of equal amount of duty on 55.780 MT of unaccounted M.S. Ingot removed from the respondent's steel melting shop division. Revenue filed this appeal against the impugned order to the extent of the demand of duty of Rs. 45,29,162/- in respect of the goods found short in stock taking. 3. Heard both sides and perused the appeal records. 4. The Ld. A.R. appearing on behalf of the revenue drew the attention of the Bench to the grounds of appeal. It is contended that the Adjudicating Authority erroneously proceeded on the basis that huge quantity was lying in the stock. It is submitted that small quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case are too bereft and devoid of details that go to show that no such physical verification exercise which can be accepted as proper in the eyes of the law, had actually been carried out by the investigation officers at the premises of the noticee's factory premises. In the absence of convincing evidence of physical weighments, it is difficult to assume that actual and proper weighment was done and the shortages were probably arrived on an average basis. On this score, I find that the judgments cited by the notice in their defence pronounced the view that allegations of shortages are not tenable when the actual weighment have not been shown to be undertaken by the department, to be applicable in the instant case. The depositions of the departmental officers at the time of cross examination commission do not throw much light so as to clear the haze of uncertainty of the process of physical weighment undertaken by the department." 7. On perusal of the grounds of appeal, I find that the revenue had neither disclosed any material nor described the method of stock taking to counter the case. The only contention is that the small quantity was lying in the factory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish clandestine removal of goods, no penal action can be taken against the assessee. In the case of Mahendra Steel Industries Vs. Commissiioner of Central Excise & S. Tax, Jaipur-I reported in 2016 (339) E.L.T. 623 (Tri.-Del.), it has been held as under :- "5. I find that the case mainly rests on alleged shortage of finished products during physical verification. The total quantity should have been 290.597 as per the records maintained by the appellant. On physical verification, the stock was found to be 245.597 MT resulting in a shortage of 45 MT. It is a fact that the Panchnama is very brief and did not contain details of how the weighment was carried out especially considering the weighment on physical verification was arrived at upto a kilogram level. Further, the whole process of weighing about 250 MTs of M.S. bars is shown to have been completed in two hours. This raises serious question about the correctness and methodology adopted for arriving at physical stock of finished goods. The whole case is built up on such shortage. There is no other corroboration regarding clandestine manufacture or clearance or transportation of goods or receipt of sale proceeds. While s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual position of stock was not ascertained. He had, therefore, by affidavit dated 20-7-2003 retracted the facts mentioned in the panchnama and the statements." In the case of Commissioner of Central Excise, Customs & S. Tax, Daman Vs. Nissan Thermoware Pvt. Ltd. reported in 2011 (266) E.L.T. 45 (Guj.), The Hon'ble Gujarat High Court dismissed the revenue's appeal and observed as under :- "7.Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution ..... 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