TMI Blog2012 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... s was on the date of visit of the officers and had cleared finished goods on payment of appropriate duty, it cannot be said that the duty liability arises - 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 - set aside the duty liability, interest and penalty on the said amount. Shortage of waste & scrap – Held that: - the appellant has not produced any evidence for clearances of said waste & scrap subsequently on discharge of appropriate duty – uphold the demand along with interest - the appellant is liable to be penalized under Section 11AC to the equivalent amount can discharge an amount of 25% as penalty, provided he disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as again drawn on 27-12-02 at the factory premises of the appellant and physical stock verification of the finished goods as well as waste and scrap was conducted in the presence of the panchas and Shri Harikrishna Aggarwal, partner of the appellant firm. As suggested and requested by Shri Aggarwal, the officers in the presence of panchas and Shri Aggarwal, ascertained the weighment by counting the bunch (i.e. bhari) of the CTD bars which was the prevailing practice commonly adopted by all the rolling mills and also acceptable to the assessee. The stock of CTD bars available on 26-12-02 was counted to be 1372 bunches (i.e. bhari). Since the weight of one bunch of CTD bars as informed by Shri Aggarwal was 80 kgs., the total weight was arrive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm are in appeal against the impugned order on merits of the case, while Revenue, aggrieved by the reduction of penalties imposed under Section 11AC by first appellate authority, is also in appeal. 4. Ld.Counsel would takes us through the Order-in-Original, Order-in-Appeal and the allegations made in the Show Cause Notice. He would submit that the appellant had contested the issue on merit and had been stating that the stock taking which was done on the date of visit was incorrect and improper. It is his submission that though the partner of the firm had given the statement of acceptance of shortage of finished goods as well as waste scrap, it was subsequently retracted. It is also his submission that the Show Cause Notice issued on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit, the closing balance as recorded in RG-1 register is indicated as 585.293 MTs. The officers found that there was a shortage of finished goods to the extent of 452.358 MT of CTD Bars. The explanation given by the appellant for the shortages was there could be a cumulative effect of the manufactured goods due to usage of different types of raw materials, was not accepted by the adjudicating authority. The appellant also gave an explanation that there cannot be any demand of duty on such shortages, if any noticed by the lower authorities as after the premises were visited and daily stock was taken by the authorities, the appellant opened another fresh daily stock account, wherein, he has indicated the opening balance as 585.293 MTs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty on the said amount of duty liability is also liable to be set aside and we do so. 10. As regards the demand of duty on the waste scrap found short in the factory premises of the appellant, we find that the appellant has not produced any evidence before us for clearances of said waste scrap, subsequently, on discharge of appropriate duty. We also find that the appellant was not able to explain the shortage of waste scrap in the factory premises. In the absence of any evidence, we find that the orders of both the lower authorities in confirming demand of Rs.2,29,964/- along with interest is correct and liable to be uphold and we do so. The demand of duty liability of Rs.2,29,964/- along with interest is upheld. Since the elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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