TMI Blog2015 (8) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority is sustained. As regards limitation, the present show-cause notice is issued for demand of duty on the shortage of goods noticed for the period in dispute and has no relevance with the first show-cause notice dated 14.8.2001. Therefore, appellant’s reliance on the Hon’ble Supreme Court’s decision is not applicable to present case. Statements recorded from various persons clearly prove the continued shortage of goods over the period. The very fact that the appellant themselves have constituted two committees, as directed by CAG Audit Report, proves that there was huge shortage where the appellants were unable to explain the reasons with clear evidence. Therefore, we hold that the adjudicating authority has rightly confirmed the demand and invoked the extended period as there was clear suppression of facts. - demand of excise duty on the huge shortage of finished goods and imposition of equal penalty with interest is liable to be upheld. - Decided against Assessee. - E/639/2002 - Final Order No. 40777 / 2015 - Dated:- 3-7-2015 - Shri R. Periasami and Shri P. K. Choudhary, JJ. For The Appellant : Shri S. Sivathanu Mohan, Advocate For The Respondent : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .68%. Subsequently, from September 1997, they introduced lot card system and elongation was recorded as 3.34%. Therefore, the excess elongation at the rate of 1.34% was recorded from 1986 to August 1997 which would have caused the difference between the RGI Register and the physical stock. He also submits that the expert opinion given by Textile Research Associations like ATIRA, BTRA and SITARA opined that it is technically impossible to achieve elongation beyond 3%. 5. He further submits that the entire demand is hit by limitation as the Department had already issued a show-cause notice dated 14.8.2001 and same was adjudicated by the Commissioner on the excess quantity seized and the Department again issued the present show-cause notice dated 27.3.2002 based on the same set of records for the same quantity, for the same period and by invoking extended period of limitation and also demanded duty. He further submits that they have submitted all their records, gate passes on 9.8.2000. Therefore, the second show-cause notice should not have been issued and there is no suppression of facts and that the Department has already carried out physical stock for which another proceeding wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been confirmed based on shortage of unprocessed and processed fabrics as well as made ups as worked out in the Annexures to the impugned order. The appellant s main contention is that the entire demand is hit by time bar and there is no suppression of facts on the ground that the Department has already initiated proceedings and issued a show-cause notice dated 14.8.2000 after verification of the physical stock on 14.8.2001 for confiscation of the seized goods found excess and the said show-cause notice was already adjudicated by the Commissioner vide order dated 7.1.2002. Therefore, they contended that the present show-cause notice is on the same set of facts and hit by limitation. 8. On perusal of the show-cause notice dated 14.8.2000 and the Order-in-Original dated 7.1.2001, we find that the said show-cause notice was issued for confiscation of the excess goods seized at their units. The adjudicating authority had decided the said show-cause notice and imposed penalty under Rule 173Q for improper maintenance of statutory records. From the above, we find that the proceedings initiated in the show-cause notice dated 14.8.2000 was entirely different and it is only related for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original authority made a specific reference to the assessee s letter dated 23-7-93, wherein the appellant disputed the manner in which the stock of clinkers was taken, but there was no explanation for its silence between 20th July, 1993 and 23rd July, 1993. The said observation of the original authority is quite convincing and acceptable. If really the inspecting officials did not make proper verification of the stock at the time of inspection, it is quite normal that the aggrieved assessee would have immediately objected to any such improper method of verification of stock then and there. When two of the officials gave their statements expressing their ignorance about the shortage of clinkers, it was for the appellant to satisfactorily explain the said defect in the maintenance of records or the actual availability of stock. Moreover, the stock verification disclosed a book stock of 1214.579 metric tons when the physical stock available was only 123.500 metric tons of clinkers. That apart, the unloading of coke breeze to the extent of 1445.325 metric tons during the period from 8-4-93 to 13-4-93, as against the quantity of 232.2 metric tons disclosed in Form IV register, only s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quantity, which were not noted in the stock register, was well justified and we do not find any illegality or irregularity in such a conclusion drawn by the authorities for the levy of duty and the demand of duty imposed. Inasmuch as the first respondent has chosen to delete the penalty, that itself was a grace shown to the appellant while passing the order impugned in this appeal. 10. The ratio laid down by the Hon ble High Court of Madras is squarely applicable to the facts of the present case. Accordingly, we find that the demand of duty on the shortage of goods confirmed by the adjudicating authority is sustained and we order accordingly. 11. As regards limitation, as already discussed in the preceding paragraphs, the present show-cause notice is issued for demand of duty on the shortage of goods noticed for the period in dispute and has no relevance with the first show-cause notice dated 14.8.2001. Therefore, appellant s reliance on the Hon ble Supreme Court s decision is not applicable to present case. Statements recorded from various persons clearly prove the continued shortage of goods over the period. The very fact that the appellant themselves have constituted tw ..... 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