9911796707
TMI Blog2012 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory premises of the appellant on 26-12-2002 and carried out the search. As per the RG-1 Register, the opening stock of CTD Bars of iron & steel as on 26-12-2002 was shown as 585.293 MT. It was found that 23.175 MT CTD bars were cleared vide C.Ex. invoice No.414 to 417 dated 26-12-2002. As per the Form-IV register, stock of raw materials i.e. ferrous waste & scrap was shown as 411.323 MT and stock of plates of iron & steel was shown 51.450 MT. The weighment of the stock lying in the factory premises of the assessee could not be carried out on 26-12-2002 due to non availability of transport and kept for the next day i.e. on 27-12-2002. A panchnama was again drawn on 27-12-02 at the factory premises of the appellant and physical stock v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed equivalent amount of penalty under Section 11AC read with Rule 25 of Central Excise Rules, 2002 and also imposed penalty of Rs.3 lakhs on Shri Harikrishna Agarwal, the partner of the assessee. Aggrieved by such an order, the appellant preferred an appeal before first appellate authority. The first appellate authority, after granting the personal hearing, has upheld the demand confirmed by adjudicating authority with interest, but has reduced the penalty imposed on the appellant firm under Section 11AC to Rs.5 lakhs and on the partner to Rs.1.5 lakhs. The appellant company M/s Jay Mahakali Rolling Mill and Shri Harikrishna Agarwal, the partner of the firm are in appeal against the impugned order on merits of the case, while Revenue, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is inculpatory statement of the partner, admitting the shortages found during the visit of the appellant s factory. It is his submission that once there is an admission of the shortages, there is no need for further verification to be done by the officers to hold that there was clandestine removal. 6. We have considered the submissions made at length by both sides and perused the records. 7. The issue involved in this case is regarding demand of duty leviable on the finished goods and waste & scrap, which were found short during the visit of the appellant s factory premises. 8. As regards the shortage of finished goods, we find that on the date of visit, the closing balance as recorded in RG-1 register is indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. If the appellant had taken the opening stock as the same as was on the date of visit of the officers and subsequently cleared finished goods on payment of appropriate duty, it cannot be said that the duty liability arises on the appellant for the shortage of finished goods noticed on 27.12.2002. There cannot be demand of duty on the same product, one by adjudication order and another by way of discharge of appropriate duty by preparing duty paying invoices. 9. In view of the foregoing, we hold that the impugned order to the extent it confirms demand of duty of Rs.9,02,979/- is liable to be set aside and we do so. As we have set aside the duty liability, interest and penalty on the said amount of duty liability is also liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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