TMI Blog2009 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in RG-23A Part-I. It is to be kept in mind that the shortages of raw materials has been found in respect of physical stock available vis-à-vis the entries made in the RG-23A Part-I. The burning loss would have occurred only after the materials are issued and shown to have been issued from the RG-23A Part-I. - As it is the appellants, who are claiming the benefit of Modvat credit, the onus to show that the same is being claimed in respect of the full quantum of raw materials received by them and utilized in manufacture of the final product is upon them. They are duty bound to show full accountal of the raw material, in respect of which they have availed the credit. Appellants having not explained such shortages, we are of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajak, learned SDR for the Revenue. 2. As per the facts on record, the appellants are engaged in manufacturing of CTD/Plain Bars by using the steel plates on which they are availing the benefit of Modvat credit. Their factory was visited by the Central Excise officers on 12-8-97 who conducted various checks and verifications. No discrepancy was found in the physical stock of the final product vis-à-vis at the RG-1 register. However, the stock of the raw materials as recorded in RG-23A Part-I was found to be short than the physical stock by 298.000 MTs. Whereas the RG-23A Part-I recorded the stock of plat as 643.770 MTs, only 334.770 MTs was found to be physically available. Accordingly, a panchanama was drawn in the presence of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Rule 209A of the Central Excise Rules, 1944. The said order of the Additional Commissioner was upheld by the Commissioner (Appeals). Hence, the present appeal. 6. Dealing with the confirmation of demand of duty of Rs. 4,69,350/-, which stands confirmed on the shortages of the raw material, the stand canvassed before us by the learned Advocate is that the said shortages was not actual but pseudo inasmuch as it was not possible to weight the huge quantity of steel plates during the course of the day. It stand submitted that such weighment of steel plates was required to be done by carrying the same in trucks. Learned Advocate has drawn our attention to an affidavit filed by the Director as also an affidavit filed by Shri Bajrang Prabhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he does not concur with the Panchnama drawn on as early as 12-5-1997. The attempt that is being made to project his disenchantment with the liability arising out of the contents of Panchnama, by filing an affidavit after a lapse of more than six months and after his having made two voluntary depositions in form of oral evidences recorded by the department on 12-5-1997 and 27-11-1997 confessing the factum of shortage in the stock of inputs on 12-5-1997, can at best be termed as an afterthought only. That there is no plausible reason to explain the shortage is evident from another angle too. In his oral depositions, the shortfall is attributed to burning loss whereas affidavit filed thereafter declares that there was no shortfall at all. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appears to have make any effort to explain the circumstances under which they placed their signatures on the Panchnama dated 12-5-1997. Interestingly, both similarly - worded affidavits seem to convey that it was only after Shri Neeraj Arya read out the Panchnama before them and that too after a period of over four years that they came to terms with its contents. Panchnama is a document essentially to be authored by Panchas themselves. The Panchas are expected to narrate the nuances of various happenings that take place before them in a voluntary and unbiased manner. And once they are found to have discharged the task of narrating the Panchnama in a voluntary manner (emphasize supplied), they would in my view become functus officio so t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the shortages were on account of excess burning loss more than 5%, claimed by them cannot be appreciated inasmuch as such burning loss occurs after the raw material stand issued from RG-23A Part-I. As such, even if the burning loss was more than the availed burning loss, the same would not have resulted in shortages of the raw materials as against the entries in RG-23A Part-I. It is to be kept in mind that the shortages of raw materials has been found in respect of physical stock available vis-à-vis the entries made in the RG-23A Part-I. The burning loss would have occurred only after the materials are issued and shown to have been issued from the RG-23A Part-I. We also note that the said shortages are not negligible but to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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