TMI Blog1994 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ir and sustainable order. Taking into account the totality of the facts I reduce the personal penalty to Rs. 2.000/- only. The impugned order is otherwise upheld. The order-in-original was passed by the Dy. Collector who had held, I hold that the allegations levelled in the show cause notice are correct. The party had removed the goods i.e. 216.889 MT without payment of duty in contravention of Rules 9(1), 52A, 173Q of Central Excise Rules, 1944. I therefore, order that the duty payable on these goods amounting to Rs. 83,153.66 shall be paid forthwith. I also confiscate 17.881 MT of M.S. Ingots which have not been accounted for in RG-1 register but allow the party to redeem the same on payment of Rs. 3000/- for contravention of Rules 9(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird proviso of Rule 9(1) for the Central Excise Rules, l944; that in spite of the fact that the production is recorded on estimated average basis, variation has been estimated only 216.889 MT; that this variation was of very minor nature, in view of the fact that the total production during the period was 21147.588 MT; that the variation works out to only 0.8%; that the factory had started manufacturing sometime in March, 1987 and no reconciliation was done on actual weighment basis as the unit was new; that the excess was also because of the method of accounting used inasmuch as there were some rejects and small pieces of Ingots obtained by pouring the hot metal into Moulds but the hot metal was not sufficient for big size Ingots; that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g recorded on the basis of average estimation of weight; that the same method of estimation of weight was adopted by the verifying officers and therefore the difference in weight is not erroneous but must be actual; that Shri Naidu in his statement submitted that there was no weigh-bridge and therefore the actual weighment for recording the production was not being done; that now the appellant has come with the contention that they had a weigh-bridge in the factory. In support of their contention that the goods were being cleared after actually weighing them that this contention of the appellant may not be accepted now; that the shortage and excess in the two varieties of Ingots manufactured by the appellant were real as the method of calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging that the goods were removed clandestinely. Having regard to these findings and examining the present case in the light of the ratio of the decisions cited and relied upon by the appellant, I find that the stock has been verified and the shortage has been determined on the basis of average weight. Average weight cannot be the basis for determining the quantum of demand. In the absence of any finding about what the exact excess or shortage was .. I find that the demand is based on presumptions and assumptions. Presumptions and assumptions cannot take the form of proof. I therefore hold in these circumstances of this case and evidence available on record and pleaded at the time of hearing that the demand for duty is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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