TMI Blog2010 (1) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ine removal, imposition of redemption fine is unwarranted. (3) That the levy of excise duty of Rs. 11,31,557/- on the basis of breakdown report is uncalled for. 2. Elaborating his argument Mr. Singh, ld. Counsel submits that the insignificant difference of the weighment in the course of investigation resulting minor shortage does not call for imposition of duty of Rs. 8,247/-. He submits that the duty so imposed was without properly evaluating evidence on record. 3. So far as the goods found in the Truck outside the factory is concerned, he submits that the goods were carried for weighment in Dharamkanta before dispatch of the same. He draws attention to the statement dated 26-3-2003 recorded from Shri Lokesh, Driver of the vehicle (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice indicates the quantities worked out by the Revenue on the basis of breakdown report. According to Revenue, there was higher quantity of goods manufactured while lower quantity of goods has been recorded in the RG-I Register. The difference between the two gave rise to demand of Rs. 11,31,557/-. He demonstrates from the reverse of page 7 of the breakdown report relating to 26-3-2002 to show comparison with the goods recorded in PG-I Register as appearing at page 80 of the appeal folder. He submits that according to the breakdown report there was work in progress of 14.098 MT of goods in the factory to reach finality of manufacturer. While that was the factual position, there was recording of 17.010 MT quantity of goods in the RGI R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits of calculation for arriving at the quantity of production. Therefore, the breakdown report shall not be the basis to make allegation against appellant in absence of any cogent evidence to show that there was suppression of any manufacture done by the appellants. Therefore, the duty levied is sustainable. 5. So far as levy of the penalties on the appellant and other individuals are concerned, he submits that there is nothing mala fide coming out from the materials borne by record for which no penalty should be levied. 6. Ld. DR Shri Vijay Kumar vehemently oppose the submissions of the ld. Counsel on all the three counts. He submits that the shortage although claimed to be insignificant by the assessee, that was shortage on record. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the goods were meant for weighing outside in dharamkanta. Driver has disclosed the name of Shri B.M. Bika who had asked the driver to meet him at weighing place. There is no evidence recorded from Mr. Bika to discard the pleading of the appellant as to the weighment of the goods outside. There is also no evidence on record that whether these are surplus goods over and above the quantity shown in the record. In absence of any collateral evidence to discard the truthful statement of the driver, there cannot be any allegation of clandestine removal of the goods found outside the factory. We tried to found out whether preponderance of probabilities shall be in favour of Revenue. Only because the procedure was not followed to remove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneous. The breakdown statement itself did not show the quantum of finished goods manufactured on the respective day. It may be probable to state that various unfinished stage involve in manufacture of goods. Such unfinished stage goods were converted into MTs at page 66 of the appeal folder to form part of the show-cause-notice, depicting the shortage of production. There is no material brought on record to show that the appellant has made any surplus production during the breakdown period either suppressing its purchase of raw-material or suppressing power consumed or clearing the goods clandestinely. When no such evidence come forward to prove contumacious conduct of the appellant, the appellant should not suffer. 12. Ld. DR s submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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