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TMI Blog2018 (2) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... d effectively by the appellant. Shri Desai has also accepted the production as reported by him. When such is the case, the burden is on the appellant to establish that the said goods were never in existence or not clandestinely cleared - decided against appellant. Appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... . When the same was cross-verified with the statutory records, there were substantial differences. The unit of the appellant was working round the clock and the reason adduced for non-availability of production slip and updation of RG-1 register is not acceptable. 7. We have heard both the sides and perused the appeal record. In these two appeals, the point of dispute is unaccounted stock of excisable goods available in the factory premises and irregular maintenance of records. 8. The admitted facts are that during the visit of the officers on 13/10/2009, there was more than 800 M.T. of SS flats found in the premises which were not accounted in the statutory records. The value of the goods were more than ₹ 2,00,00,000/-. Admittedly, the appellant's factory worked round the clock and had a standard process of accounting based on production slips on shift basis and having internal control mechanism for the same. The reason adduced by the appellant for non-accountal of such huge quantities of such manufactured products is not convincing. Further, the claim of the appellant that the stock verification was done by eye-estimation is also not acceptable. The panchnama prepared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty on any person who issues any other document or abets in making such document based on which ineligible benefit of credit is passed on to another person. We note that the main appellant is a limited company. The second appellant is an employee of the said company. He acted as a paid employee with no pecuniary benefit in the non-accountal or evasion of central excise duty. We hold that the Tribunal in various cases have been repeatedly holding that a paid employee acting in discharge of his duty as per directions of the controlling official cannot be held liable to penalty unless a specific role with a malafide intend for personal gain can be brought out with the evidences. No such evidence is brought in the present case. In fact, the Original Authority simply records that the second appellant is looking after day-to-day affairs of the main appellant and hence, rendered himself liable to penalty under Rule 26. We find such summary finding is without support of law. Accordingly, we set aside the penalty imposed on the second appellant Shri Ashok Mishra. 11. Appeal No. E/51004 of 2015 is against original order dated 15/12/2014 of Commissioner of Central Excise, Indore. In this pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortage of SS billets, we note that the defence of the appellant relies on the documents of production and use for 11th and 12th October 2009. As already discussed in respect of the other appeals, the production or usage of excisable goods on these two days has not been categorically established before the visiting officers on 13/10/2009. This aspect has been discussed by us while upholding the finding on irregularity in the statutory records. As such, the documents and supports purported to establish the production and captive use on these two days cannot be accepted on the face value. As noted by the Original Authority captive consumption of SS billets on 12/10/2009 has already been considered while accounting for the shortage on which demand is confirmed by the Original Authority. In the absence of any contrary evidence, we note that the findings of the lower authority cannot be interfere with. While in principle, we accept that the case of clandestine removal cannot be upheld only on the basis of shortage of excisable goods, it is imperative for the assessee to explain satisfactorily the non-availability of excisable goods which were produced and accounted for in their records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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