JUDGMENT : AJAY KUMAR TRIPATHI, J. 1. Revenue, i.e., the Principal Commissioner, CGST & Central Excise, Raipur Chhattisgarh, is in appeal in the present tax case. They are assailing the Final Order No. A/50857-50858/2018-EX(DB) dated 05.03.2018 passed by the Customs, Excise, Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short, 'CESTAT') as well as the order passed in Appeal No.E/51825/2015 and Appeal No.E/52038/2015 arising out of the Order-in-Original No.RPR/EXCUS/000/COM/03-04/2015 dated 29.01.2015. 2. Origin of the present dispute lay in a search carried out by the Headquarters Preventive Branch of the Appellant authorities in the factory premises of the private Respondents for physical stock taking of the finished goods and raw materials. This verification was carried out between 05.06.2012 to 12.06.2012. After conclusion of verification respective Panchnamas were drawn which were duly signed by the representatives of the Respondents-Company present. The physical stock taking revealed that there was a major shortage of 9076.766 MT of finished goods i.e. TMT Bars valued at Rs.35,28,59,278/- involving Central Excise Duty of Rs.4,36,13,406/-. There was also shortage of 16.915 MT of raw material i.e. M.S. Ingot valued at Rs.5,53,966/- involving duty Rs.68,470/-. In absence of any clear explanation with regard to such huge shortage in the stock, the Respondents-Company paid a part of the duty to the extent of Rs.1,87,81,877/- and agreed to pay the balance over a period of time. 3. A show cause notice was issued on 28.03.2013 for raising demand and for recovery of total Central Excise Duty amounting to Rs.4,36,81,876/- along with interest as also imposition of penalty under Section 11AC of the Central Excise Act, 1944. 4. The factory premises of the Respondents-Company was again searched by the officers of Headquarters Preventive Branch along with officers of Central Bureau of Investigation on 20.03.2013. In this search and verification carried out, shortages of 13.038 MT of TMT Bar, 84.667 MT of M.S. Ingot, 392.271 MT of Waste & Scrap were found in Rolling Mill Division-I, shortages of 29.793 MT of TMT Bar, 135.155 MT of Billets were found in Rolling Mill Division-II and shortages of 29.232 MT of M.S. Ingot as well as 13.441 MT of Runner/Riser etc. etc. were found. This discrepancy entailed Excise Duty to the extent of Rs. 47,47,339/-. A separate show cause notice was issued on 13.03.2014 for recovery of Central Excise Duty amounting to Rs. etc. were found. This discrepancy entailed Excise Duty to the extent of Rs. 47,47,339/-. A separate show cause notice was issued on 13.03.2014 for recovery of Central Excise Duty amounting to Rs. 50,37,737/- along with interest and penalty to be imposed under Rule 25 of the Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944. 5. The Commissioner, Central Excise, Headquarters, Raipur confirmed the entire demand made under both the notices along with interest and imposed equivalent penalty upon the Respondents-Company. 6. Being aggrieved by the order, an appeal was preferred before the CESTAT which was registered as Appeal No.E/51825/2015 and Appeal No.E/52038/2015. 7. The appellate Tribunal dealt with both the issues jointly and by a common order dated 05.03.2018, allowed the appeal of the private Respondents relying on the principle that if it is a case of clandestine removal clinching evidence in this regard should have been produced by the Revenue. In absence thereof on mere suspicion neither the Excise Duty nor interest or penalty could have been imposed thereon. The Tribunal relied on the ratio rendered in the case of CCE&ST, Ludhiana Vs. Anand Founders & Engineers, 2006 331 ELT 340 (P&H) as well as Continental Cement Company Vs. Union of India, (2014) 309 ELT 411 (All.). 8. While assailing the impugned order of the Tribunal, counsel for the Revenue submits that the Tribunal has seriously erred on relying on a principle in deciding the appeal in favour of the Assessee by totally missing the facts and evidence which had come during the exercise carried out in the factory premises on the two occasions coupled with the statements which came to be recorded of the representatives or the man in-charge of the factory at the relevant time, especially, the statements which were given to the Excise authorities under Section 14 of the Central Excise Act, 1944. 9. After the panchnama was drawn they have been duly signed on one occasion by one Rajesh Tripathi, who was said to be General Manager (Finance) and on yet another occasion by the same G.M. (Finance) and one D.K. Shukla, who is said to be authorised signatory. On yet another occasion the Director-in-charge, namely, Gurpreet Singh Chandok. From the records and the statements which were made before the Central Excise authorities by Mr. On yet another occasion the Director-in-charge, namely, Gurpreet Singh Chandok. From the records and the statements which were made before the Central Excise authorities by Mr. Rajesh Tripathi, G.M. (Finance) and Gurpreet Singh Chandok, the Director of the Company, they clearly and categorically accepted the huge shortfall in the physical verification. It is also of significance to note that the verification and weighment was carried out by the Excise authorities on the formula suggested and accepted by Gurpreet Singh Chandok, the Director of the Company. He had also accepted in his statement about removal of finished goods and raw materials found short during physical verification without following the Central Excise procedure and without payment of duty. 10. During the course of investigation, the Company further paid the following amounts from time to time towards the demands raised against them without any demur. The amounts are 5,00,000/-, 5,00,000/-, 10,00,000/-, 20,00,000/-, 20,00,000/- vide challan dated 04.09.2012, 06.10.2012 and 16.11.2012, therefore, against the demand of Rs. 4,36,13,406/- a sum of Rs. 1,87,81,877/- stood paid without any ifs and buts towards Central Excise Duty. 11. Attention of the Court was further drawn to the statement made by Shri Gurpreet Singh Chandok, which is statement recorded on 25.03.2016 and is part of Annexure A/6.7 to the Tax Case. The Court would like to reproduce entire statement because adjudication of the present case does hinge and has to be decided on the factual matrix. The statement so recorded by the Excise authorities before the Superintendent, Preventive Central Excise Authority in following terms : "Statement Dated 25/03/2013 Statement of Shri Gurpreet Singh Chandak, S/o Shri preethpal Singh Chandak, Age:37 yrs., Occupation: Director, M/s G.P. ispat Pvt. Ltd., 683-693, Urla Industrial Growth Centre, Raipur (C.G.), residing at Preethpal Farm house, V.I.P Road, Raipur, recorded under the provisions of Section 14 of the Central Excise Act, 1944 before the Superintendent (prev.), Central Excise, Hqrs. Raipur on 25/02/2013. In response to your summons dated 25/03/2013, I am appearing before the Superintendent, Central Excise, Hqrs, Raipur to tender my true and correct statement on 25/03/2013. Raipur on 25/02/2013. In response to your summons dated 25/03/2013, I am appearing before the Superintendent, Central Excise, Hqrs, Raipur to tender my true and correct statement on 25/03/2013. I have been explained the provisions of Section 14 of the Central Excise Act, 1944 whereby the above inquiry is deemed to a judicial proceeding within the meaning of Section 193 and 228 of Indian Penal Code, according to which intentionally giving false evidence or fabricating false evidence, for the purpose of being used in these proceedings, is an offence punishable Under Section 193 of the Indian Penal Code, and intentionally offering insult, or causing any interruption to the Officer sitting in these proceedings, is an offence punishable Under Section 228 of the Indian Penal Code. Having understood the said Section 10 of the Central Excise Act, 1944 and realizing my responsibility hereunder I give my true & correct statement as under. My name, age and residential address are correctly stated above. I can read write and understand both Hindi & English language. I am giving my statement in question-answer format replying to your questions to the best of my knowledge and belief. Q. No. 1:- In your Statement dated 1.06.2012 and 12.06.2012 you had endorsed the facts of the existence of the shortages of the finished goods as well as the raw materials that were detected from the physical stock verifications conducted by the Department. Further thereupon you had also assured the Department to discharge the duty liabilities rising from such shortages and eventually had also paid Rs. 1,87,81,877/- by 16.1.2012. However, consequently it has also been informed to the Department that the manufacturing activities in your factory have stopped since December 2012 and the factory has been closed ever since. IN the given circumstances, what other proposition do you have to stand by your commitments of discharging the duty liabilities which as on date remain to the extent of Rs. 2,48,31,529/-? Ans:- The economical condition of the company is not good and also the company is closed since Dec. 2012. We have to start the production very soon, and as soon as the company starts its production, we shall discharge all central excise duty liability. (emphasis ours) Q. No. 2:- Would you be able to give a time frame by which the remaining amount of the duty of excise amounting to Rs. 2012. We have to start the production very soon, and as soon as the company starts its production, we shall discharge all central excise duty liability. (emphasis ours) Q. No. 2:- Would you be able to give a time frame by which the remaining amount of the duty of excise amounting to Rs. 2,48,31,529/- involved in the goods that were found short in your factory on 05.06.2012 and 11/12.06.2012 following the physical stock verifications and owing to its unavailability in the factory premises could be discharged in full along with the interest from the dates of clearances commencing 05.06.2012? Ans:- We are not in a position to give any time frame of the payment of dues. I can state that we'll pay the duty as early as possible. (emphasis ours) Q. No. 3:- In case you are unable to give a specific time frame for paying the remaining amount of the duty and interest, do you still stand by you commitment give under oath in your depositions made earlier that the same would be paid? Ans:- Yes, we are committed to pay the duty. (emphasis ours) Q. No. 4:- In your statement sated 12.06.2012 you had expressed your inability to tender any reasons for the shortages of the TMT Bars and M.S. ingots as detected upon physical verifications of the stock undertaken by the Department from 05/06/201 to 11.06.2012 because then you had started looking after the affairs of the company in the capacity of the director for a substantially small period of a week or so and an account of such short incumbency were not in the complete state of knowing things relevant to clearance from the factory. Now that a considerable period has elapsed ever since, what reasons have you assessed or circumstances would you ascribe for the detection of such shortages. Ans:- I am not able to ascertain the reasons for such shortage. Q. No. 5:- On 05.06.2012, the preventive officers of Central Excise conducted physical stock verification of finished and raw materials and have detected shortages of 1055.575 MT of TMT Bar and 16.915 MT of M.S. ingots, which initially Shri Rajesh Tripathi, GM, voluntarily admitted in his statement dated 06.06.2012 as also by you in the statement dated 21.06.2012 and instantaneously paid the duty of Rs. 52,27,408/- Subsequently on 12.06.2012, the preventive officers of Central Excise conducted the physical stock verification of finished and raw materials and ascertained the actual shortage of 9076.766 MT of TMT Bar, which again Shri. Rajesh Tripathi, GM and yourself voluntarily admitted in your respective statements dated 12.06.2012 that then had led to the consequent payment of a partial amount of duty of Rs. 1,16,54,469/- in a phased manner and the assurances to pay the remaining amount in due course. In any case, a fact remains on your records that the quantum of the TMT Bars as well as M.S ingots that had appeared as recorded balance on the dates of physical stock verifications conducted by the Department was at variance with the physically available stock of the same in the factory premises. Do you then accept the incisive and analytical conclusion the Department that the goods which have been found short in your factory on 05.06.2012 and 11.02.2012 have been dislodged from the physical stock without following the Central Excise procedures and without payment of duty upon removals within thus culminated into your agreeing to pay the duty involved the resultant shortages of excisable goods as detected? Ans:- Yes, we accept that the goods are dislodged from the factory without following Central Excise procedures, without payment of duty and against this we have already payed Rs. 1,87,81,877/- and we shall pay the remaining duty as early as possible. (emphasis ours) Q. No. 6:- Do you want to state anything more? Ans: No, sir I have read my statement dated 25/03/2013 from page No. 1 to 3 which was typed in computer on my request. The statement has been correctly recorded as per my version & the same is correct to the best of my knowledge. I after being fully satisfied & in completer senses, voluntarily tendered my statement and put my signature on it without any fear, favour or duress. Recorded before me, Sd/- Sd/- Superintendent (Preventive) (Gurpreet SinghChandok) Central Excise Hqrs. Raipur Director & authorised signatory M/s G.P. Ispat Pvt. Ltd. 683-693 Urla Industrial Growth Centre, Raipur" Superintendent (Preventive) (Gurpreet SinghChandok) Central Excise Hqrs. Raipur Director & authorised signatory M/s G.P. Ispat Pvt. Ltd. 683-693 Urla Industrial Growth Centre, Raipur" 12. Recorded before me, Sd/- Sd/- Superintendent (Preventive) (Gurpreet SinghChandok) Central Excise Hqrs. Raipur Director & authorised signatory M/s G.P. Ispat Pvt. Ltd. 683-693 Urla Industrial Growth Centre, Raipur" Superintendent (Preventive) (Gurpreet SinghChandok) Central Excise Hqrs. Raipur Director & authorised signatory M/s G.P. Ispat Pvt. Ltd. 683-693 Urla Industrial Growth Centre, Raipur" 12. The stand of the Revenue, therefore, is that it is not a case where the Revenue alleged clandestine removal and therefore were obliged to establish the allegation of clandestine removal by the assessee. It was a case of huge shortage of finished products as well as raw materials and lack of any fair explanation by the assessee. The responsible authorities or persons of the Assessee-Company accepted the shortage and volunteered to make good the demand of Excise duty of which a significant amount thereof came to be paid and for payment of the balance amount a plea was taken that since the Company was in financial distress, therefore, further time and indulgence ought to be extended to them. However, instead of sticking to their words and despite time having been granted by the Excise authorities, to the Company, they approached the appellate Tribunal and the Tribunal without taking into consideration the statements and acceptance made by the responsible officers of the Assessee, got taken in by the line of arguments made before it that it was a case of clandestine removal, therefore, onus has to shift upon the Revenue to establish the same on the basis of the principles extracted from the case of Anand Founders & Engineers as well as Continental Cement Company (supra). 13. On behalf of the Respondents a plea is taken that there were reasons for the shortage and they tried to explain it to the authorities that the shortfall also happened because of the burning factor and therefore benefit of doubt ought to have been given and the Duty so demanded coupled with interest and the further liability imposed by way of penalty etc. ought not to have been imposed. ought not to have been imposed. However, we do not get any clarity from the order of the Tribunal with regard to the acceptance and the statements made under Section 14 of the Central Excise Act, 1944 duly recorded by the Excise authorities coupled with the acceptance of the fact and position and the undertaking to pay the demand so raised upon them, against which compliance also was done over a period of time. 14. The Court therefore fails to appreciate as to why the statements duly recorded under statutory provisions of Section 14 of the Central Excise Act, 1944 was ignored or not taken into consideration by the appellate Tribunal. No where did the private Respondents plead that the allegation of clandestine removal was made against them. The department all along sought clarity from them for such huge difference in the physical stock vis a vis their book of accounts and only explanation offered by the Respondents-Company was that the goods have been "dislodged". 15. Since it is a case of acceptance and failure to explain the huge variation in the stock and the variations were not having been disputed, the demand so made and calculated by the assessing authority was in conformity with the law. The ratio relied upon by the Tribunal that it will be governed by the principle of clandestine removal seems to be misplaced in the facts and circumstances of the case. The ratio of Anand Founders & Engineers and Continental Cement Company (supra) have no applicability to the present case. 16. The Tax case is allowed. The impugned order dated 05.03.2018 contained in Annexure A/1 passed by the CESTAT stands quashed.