TMI Blog2013 (11) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... osed under other provisions of Central Excise Act or the Rules made thereunder, except under Section 11AC of the CEA,1944 - as penalty is not imposable under Section 11AC of CEA,1944 and in absence of proposal of penalty under any other penal provisions, thus, no penalty could be imposed on the Appellant for the shortage –order set aside to the extent of confirmation of Penalty – Decided partly in favour of Assessee. - APPEAL NO.E/A/939/2011 - ORDER NO.FO/A-71057/2013 - Dated:- 13-9-2013 - DR. D.M.MISRA, J. FOR THE APPELLANT : SHRI N.K.CHOWDHURY,ADVOCATE FOR THE RESPONDENT : SHRI S.P.PAL, A.R.(APPRAISER) JUDGEMENT The present Appeal is filed against Order-in-Appeal No.100/KOL-II/2011 dated 19.08.2011 passed by Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals). He has made a categorical submission that the Appellant are not before this Tribunal challenging the Orders of the lower authorities with regard to confirmation and appropriation of duty of Rs.1,38,676/- paid by them on 10.08.2006 relating to shortage of finished goods of 48.280 MT. The ld. Advocate explaining the purported shortage of 48.280 MT in the physical stock of the finished goods in comparison to their RG-I Register, submitted that during the course of physical stock verification, while furnishing the weight of MS Flats, Rounds, Squares etc. lying in bundles, they had informed the average weight of each bundle as around 70 Kgs. Consequently, the weight of the finished goods in bundles had been arrived at, after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in the case of CCE, Allahabad vs. Bharat Rolling Mills, 2012(284)ELT 539(Tri.-Del.)and CCE, Delhi-III vs. Mico Glass Industries Pvt. Ltd., 2010(254)ELT 231(P H). 5. Heard both sides and carefully considered the records. I find that during the course of visit of the Officers on 10.08.2006, shortage of around 48.280 MT in the finished stock was found against the recorded stock of 39,025 MT in the RG-I Register. I have also seen Annexure: C to the show cause notice, wherein the result of Joint Stock Verification had been recorded. The total quantity of stock mentioned in the said Stock Verification Report, had been arrived at by multiplying the number of bundles with the factor 70 assuming that each bundle weighed 70Kgs. I fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement that shortage had been admitted and the applicable duty was paid. No question was raised in ascertaining the reason of such shortage. Accordingly, no explanation was also furnished by the said employee. In these circumstances, it is difficult to accept the contention of the ld. AR for the Revenue that the shortage quantity was removed from the factory clandestinely without payment of duty, when no further investigation had been carried out by the Department. I find force in the contention of the ld. Advocate that such shortages could be on account of various factors, including the practice of determining the weight on applying average weight of each bundle. In absence of cogent evidences or admission of removal of goods clandestinely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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