TMI Blog2015 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed lot of round, TMT and Tor and the bar. I find that their representative associated in weighment and consequent determination of shortage and those conclusions were duly accepted with signatures on verification report put by the authorised representative of the appellant. Raising those points at this level is not acceptable as fact of shortage is clearly manifested and acceptance of shortage by their representative and consequent deposit of duty on the shortage voluntarily clearly indicated that the proceedings have been conducted after taking them into confidence and were based on specified para-meters. Material involved for verification are M.S.Bars and M.S.Ingots which were steel items having identity, shape and specified weight. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manmohan Singh: The appellants have come in appeal against the Order-in- Appeal No. 96-CE/MRT-I/2012 dt.17.4.2012 passed by the Commissioner(Appeals), Meerut-I where in the Commissioner (Appeals) partly allowed the appeal by reducing penalty from ₹ 1,18,956/- to ₹ 60,000/- and from ₹ 16,698/- to ₹ 5,000/- only. The Commissioner (Appeals) has held that there was no tangible evidence of clandestine removal of goods and accordingly the provisions of section 11AC were not applicable in the case of the appellants. Despite substantial benefit granted by the Commissioner (Appeals), they are in appeal before the Tribunal with the request to set aside confirmation of demand of duty/credit and dropping of imposition of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same were appropriated along with imposition off penalty by the adjudicating authority which was later on modified by the Commissioner (Appeals). 4. Shri Alok Arora appeared on behalf of the appellant. He contended that the Commissioner (Appeals) in his order has held that there were no tangible evidence of clandestine removal of goods. He has restricted to impose penalty under section 11AC of Central Excise Act. He contended that the weight has been taken on average basis and percentage comes to 2.55% in the M.s.Ingots and in the bars 8.5% against the book balance 378.445 MT. Shortage of ingots was 9.65 MT. He also contended that in case of loose TMT and mixed lot of round, TMT and TMT Tor, he claimed that it was done on eyes es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given which is only eyes estimation and it should not be considered as proper conclusion of the shortage. 9. find that detailed punchnama has been drawn during the visit to the factory on 20.7.2009 and detailed inspection has been conducted indicating standard weight of each bundle of 8 mm,10 mm, 12 mm, 16 mm, 20 mm and 25 mm of M.S.Bars. Simple physical weighments were done in the factory which were based on weight indicated by the representative of the appellant and accordingly that was made basis of calculation. This fact is not contested by the appellant. Only contest is weight of loose TMT and mixed lot of round, TMT and Tor and the bar. I find that their representative associated in weighment and consequent determination of shortag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty should be taken. 11. I have perused the judgements quoted by the appellant. I find that facts in these judgements in the case of CCE, Meerut-I vs. Sri Jaibalaji Ispat Pvt.ltd.-2014 (310) ELT 556 (Tri.-Del.) and Continental Cement Factory vs. Union of India-2014 (309) ELT 411 (All) are different and not applicable to the facts of the present case. He also referred to the judgement of High Court of Allahabad regarding non imposition of penalty under section 11AC. This case is not relevant in the present proceedings as the Commissioner (Appeals) has already agreed for non imposition of penalty under section 11AC. Department is not in appeal before the Tribunal against reduction of penalties. 12. I have also gone through the judgem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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