TMI Blog1991 (6) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... er X procedure and also of the tobacco waste, sweepings, dust etc. arising in the manufacture of cigarettes and found a shortage of 13589 kgs. of tobacco stated to be tobacco dust, floor sweepings against the tobacco received with reference to the total quantity entered in their R.G. 16 stock register. He pleaded that the Production Manager Shri R. Mohan of the appellant's factory gave a letter inter alia stating that since the tobacco waste etc. were occupying lot of space and its continuing storage led to infestation in the place of storage of cut tobacco, the same was dumped in a pit inside the factory and the officers during the survey of the factory noticed the shortage. The ld. Advocate pleaded that no doubt, that he stated that there was a shortage as per the check conducted by the officers but this fact stated by Shri R. Mohan should not be read in isolation. He pleaded that Shri Mohan had clearly stated that they had removed the tobacco dust and sweepings to the pit with the oral permission of the Assistant Collector on 20-6-1989. The ld. Advocate pleaded that the Central Excise officers had not weighed the total quantity which was lying in the pit and had done only partia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the weigh bridge. Apparently, these weighments were made to assess the normal quantity of waste generated in a day. In the absence of authentication which is required under normal circumstances it is not possible to rely upon the weighbridge records and to come to any definite conclusion but there are many other factors which lead to the same conclusion in so far as the shortage of cut tobacco waste is concerned." He pleaded that the ld. Collector should have tested the veracity of their plea by calling the officers who did the check. He pleaded that the plea for cross-examination of the Departmental Officers in this context becomes all the more relevant. However, he pleaded that the ld. Collector chose to deny them the benefit of this cross-examination observing that in quasi-judicial proceedings denial for cross-examination of the Departmental officers does not constitute any violation of the principles of natural justice and in the context he observed as under. - "All the records on which the case has been built have been given to the party. The Departmental officers by themselves do not contribute anything by way of evidence. It is true that they had undertaken stock cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t weight of tobacco in the previous years also and the variation has been different from year to year. He pleaded that no demand has been raised in the past for the period 1980 to 1984 on such variations and the demand has now been raised for the first time only in respect of the period 1985-1989. He has pleaded that in the circumstances, therefore, the question of any demand does not arise and he pleaded for waiver pre-deposit of the duty on this prima facie ground. 5. Heard Shri Jothipandian, the learned Departmental Representative for the Department. 6. We observe that the appellant's Production Manager on 26-6-1989 has admitted to the shortage found by the officers and at the same time has gone on record also that the appellants had removed the tobacco waste from the factory premises with the oral permission of the Assistant Collector. There is no denial from the Assistant Collector or the Department on record that such oral permission was not granted. The ld. Advocate during the course of argument has drawn our attention to the correspondence exchanged between the appellants and authorities about the accountal of the cut tobacco and the waste arising in the course of manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gures all along from 1980 to 1984. There is nothing on record to show as to the basis on which this theoretical figures were arrived at and the factors which have a bearing on the actual production of the cigarettes out of the tobacco consumed. As it is, we find from the copy of the Departmental Manual Instructions on Cigarettes produced before us the accepted position is that there would be some variation in the number of cigarettes manufactured out of a unit of tobacco even on day-to-day basis. Under para 64/65 the Departmental Manual on Cigarettes the following is set out: "64. Difference over theoretical output. - In the absence of reliable data at present, no indication can be given as to what may be treated as permissible difference between the actual number of cigarettes turned out and the theoretical output according to the formula of manufacture. This difference will also depend upon the efficiency of different factories. Wide fluctuation in the difference either from day to day or at uncertain interval must, unless they can be definitely traced to mechanical or any other ascertainable cause be treated as indications of malpractices. For each factory, therefore, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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