TMI Blog2013 (8) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention can be attributed to the excess of this magnitude – Reliance can also be place upon the judgment in the case of Hindustan Steel Ltd. vs. CCE reported in 1969 (8) TMI 31 - SUPREME Court, wherein it is held that for imposition of penalty under Rule 173 (1) (a) and 173Q (1) (b) of Central Excise Rules, 1944 there must be intention to evade the payment of duty – Decided in favor of Assessee. - Appeal No. 357-358 of 2011 (SM) - Final Order Nos. 56413-56414/2013-SM(PB) - Dated:- 14-5-2013 - Mr. Rakesh Kumar, J. For the Appellant: Shri N.K. Sharma, Advocate For the Respondent: Shri Sanjay Jain, Authorized Representative (DR) JUDGEMENT Per. Rakesh Kumar:- The facts leading to these appeals are, in brief, as under. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Shri N.K. Sharma, Advocate, the learned Counsel for the appellant, pleaded that the excess in the stock of aluminium ingots in terms of percentage is only .7% (excess of 0.592 M.T. in the total stock of 87 M.T.) and similarly the excess in the stock of aluminium scrap 11.554 M.T. in the total stock of 870 M.T. comes to only 1.33%, that this quantum of excess cannot be called real excess as the same can be attributed to mistakes weighment or mistake is recording the quantity over a period of time that aluminium dross ash and residue arose continuously in the manufacture of aluminium ingots the same re-used that the appellant in respect of aluminium dross ash and residue availed duty exemption under Notification No. 67/1995-CE, that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. 6. The excess in the stock of aluminium ingots is 0.592 M.T. in the total stock of about 87 M.T. would work out to about 0.7%. Similarly, the excess in the stock of aluminium scrap is 11.554 M.T. out of total stock of about 870 M.T. which would work out 1.33%. In my view the alleged excess of this magnitude, looking to the total quantity of aluminium ingots and scrap cannot be treated as a real excess, as the same could be due to genuine mistakes on the part of the assessee or their workers in recording the weight of ingots and scrap and, as such, no malafide intention can be attributed to the excess of this magnitude. 7. As regards the excess in the stock of aluminium dross, ash and residue, the dross, ash and residue arise c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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