TMI Blog1995 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... in the factory. 2. Shri T.K. Seshadri, the learned Counsel for the appellant referring to the order of the original authority pointed out that the original authority had come to the conclusion that the appellant had not accounted for the quantity of 997.25 MT taking into consideration RG-1 Register entries and also the quantum as was physically ascertained by dip reading of the silos. He pleaded that shortage of bags was also found but no adverse finding had been entered against the appellant taking this shortage into account. The learned Counsel pleaded that the appellant had challenged the order of the original authority that the shortage worked out based on dip reading was not done properly for arriving at the quantum of cement availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cement which can be contained in the bags found short can be taken to have been removed without payment of duty. He pleaded that to say the least, there is apparent contradiction in the order of the lower authority. He pleaded that in any case the appellant was not put on notice in regard to the shortage of cement based on shortage of bags. He pleaded that the basis for arriving at the shortage was dip reading and once this has been given a go-by by the lower appellate authority, he has not laid any basis for holding that the shortage of bags could be taken to be indicative of the shortage of cement. He pleaded that in this background, the impugned order may be set aside. 3. Shri J.M. Jeyaseelan, the learned DR pleaded that normally dip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned lower appellate authority, there was no reason for the learned lower authority to have taken into consideration the shortage of bags for arriving at the shortage of cement in the factory. The lower appellate authority himself in his order has observed that the Department has not adduced any evidence to prove illicit removal of cement from the factory and that mere shortage of goods in the factory does not necessarily mean that the goods found short were removed without payment of duty even though such shortage leads to a strong suspicion. In the concluding portion of his order, the lower appellate authority has gone on to say that the Department has not established the case beyond shadow of doubt but the absolute proof is not necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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