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TMI Blog2018 (11) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ing material - demand is mainly based on the statement of Sh. Sameer Parekh dated 05.02.2010 - Held that:- Though in the statement Sh. Sameer Parekh admitted the shortage however he immediately after five days by affidavit retracted his statement dated 05.02.2010. He explained the reason of shortage - The statements recorded of some transporter do not reveal the actual co-relation of alleged clandestine removal - also, there is force in the submission of the appellant that the shortage is only minimum to the extent of 0.5% whereas in the type of industry of appellant the difference of 3% to 5% of shortage is possible - demand cannot sustain. Appeal allowed - decided in favor of appellant. - E/13645/2014-SM - A/12605/2018 - Dated:- 19-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal of the same. 1.1 Being aggrieved by the order in original, the appellant filed appeal before the Commissioner (Appeals) which came to be rejected and the OIO was upheld. Hence the present appeal. 2. Sh. S.J. Vyas appearing on behalf of the appellant submits that as regard of SAD of ₹ 3,07,140/- though at the time of removal of input the credit of SAD was not reversed however subsequently the amount was paid. He submits that since the inputs were cleared to their own unit who are also registered with Central Excise and paying service tax, the amount of SAD payable by them was available as a Cenvat Credit to their own recipient unit at Taloja, therefore, being a inter unit transfer the entire case is of Revenue neutr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement was retracted, the Commissioner has not examined Sh. Sameer Parekh in terms of Section 9D of Central Excise Act, therefore, the statement could not have been relied upon. He further submits that except the statement there is no evidence of clandestine removal of the so called goods found short. He further submits that if at all there is any shortage it is only to the extent of 0.5% whereas even the adjudicating authority has accepted the proposition of the appellant that the shortage of 3-5% is normal in the appellants industry. For this reason also there is no physical shortage of the goods. He submits that as regard the statement of transporter, there is no correlation with any removal of the goods. Moreover the persons who gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appellant have submitted a letter from their software company from which it is clear that there was a technical snag in their ERP system on which the stock account was maintained if that be so, then it is undisputed that the stock maintained on such defective ERP system cannot be taken as correct and consequently it cannot be contended that there is a shortage or excess in the stock. The statements recorded of some transporter do not reveal the actual co-relation of alleged clandestine removal. Moreover, the persons whose statement recorded were not examined as required under Section 9D of CEA, 1944 and no evidence was produced on record regarding the clandestine removal of the total quantity of the stock said to have been found in sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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