TMI Blog2008 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... order of adjudication and such a setting aside was directed without having any material on record to prove that the quantity found on physical verification was reconcilable and other evidence suggested the basis of adjudication liable to discarded. In Para 5 of Grounds of Appeal, grievance of Revenue was ventilated as under : 5. The assessee could not explain the difference in physical stock lying in the factory premises. The contention of the assessee as well as the observation of the ld. Commissioner (Appeals), Central Excise, Kolkata that the verification of physical stock was done through eye estimation and not through physical weighment is not acceptable as this plea is an afterthought. The stock verification was jointly conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an excess/shortage in the statutory records themselves. The case is not based on one piece of evidence but on a combination of records, private documents and statements of various persons. The total evidence is overwhelming in favour of the fact that there has been evasion of duty. The standard of proof is of preponderance of probabilities and not proof beyond reasonable doubt . Once the statutory records, themselves, reflect the evasion, there was no scope for doubt. 4. Ld. Commissioner (Appeals) while deciding the matter, was of the view that along with calculation sheets and seizure lists annexed to the show-cause notice, no weighment slip was given. With such observation, that Authority came to the conclusion that the order of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess remained un-explained. Clandestine removal of the goods called the levy of duty. In order to imposes the levy, the ld. Adjudicating Authority also took assistance of labour attendance register and loose sheets recovered in the course of investigation. The documents revealed that the labour supervisor was engaged actively in manufacturing activity and recorded day-wise production of alloy steel ingots for the period from 9-11-1999 to 10-12-1999. When such production was compared with RG I Register for that relevant period, it revealed discrepancy. Such discrepancy remained un-explained. The joint stock verification revealed that the participant never objected to the manner of stock taking nor even controverted thereafter. When these cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. Therefore, Revenue cannot be prejudiced without an opportunity to present their case if the matter is remanded to the lower Appellate Authority for a re-examination on the touch stone of low. 9. In view of no evidence even brought by the ld. Counsel for the Respondent in the course of hearing to support the order of the ld. Commissioner (Appeals), we are inclined to remand the matter for re-examination. 10. In the result, appeal is remanded to the ld. Appellate Authority below, who shall hear the matter again providing a reasonable opportunity of hearing to both sides and shall deal the matter in consonance with law. Cross Objection also gets disposed off. (Operative part of the Order was pronounced in the open Court on 28-2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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