TMI Blog2006 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... are preventive officers of Central Excise Division I, Gurgaon visited the factory premises of the appellant and conducted physical stock verification. On such verification the officers noticed mis-match of physical and book stock of finished goods, clearances of Modvat credit availed inputs and removal of Modvat credit availed inputs at a lower value. Officers seized the finished goods those were not accounted in the statutory records. Records were resumed and after investigation a show cause notice was issued proposing to confiscate the seized goods, demanding duty and for imposition of penalty. The appellant resisted the show cause notice on the ground that the seized goods were day's production and the duty has been paid correctly on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sides and perused the records. It is not in dispute that the stock verification was done in the presence of the officials of the appellant. Let me take up the issues one by one. 5.1On the excess stock of the finished goods seized by the authorities, it is being explained by the counsel that these were the production of the day and other finished goods found in the reception were yet to be tested hence not reached the RG1 stage and it is the contention of the counsel that the goods found in the factory premises need not be confiscated as there is no allegation that the appellant had intention to remove the goods. The appellant being a unit in a organized sector could not just simply wish away the responsibilities cast on him by the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) has given findings as under : "(b)As regards removal of 1045 kgs. of SS sheets vide Invoice No. 228 dated 12-12-97, it has been held in the impugned order that these sheets were cleared @ Rs. 40/- per kg. whereas the Modvat credit was taken at the value of Rs. 110/- per kg. The case of the Department is based on a document dated 12-12-97 of the appellant cited in the show cause notice itself indicating that they have received certain sheets of lesser weight from SAIL which were later scrapped. The appellant has not produced any evidence in support of their contention that these steel sheets were rendered as waste during the course of manufacture. Thus, benefit of Rule 57D cannot be extended to the appellant and has been right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r value as broken outer tubs, it is the contention of the counsel that these tubs were rejects from the customers and were received back from the appellant's various depots. Learned counsel draws my attention to the goods return memo issued by the depots and submits that the value indicated on the goods return memo would is (sic) for the damaged goods. After perusing the said goods return memo, it is seen that the depots prepared these documents for return of the spares lying with the depot. The said documents do not indicate anywhere that the outer tubs were received back from the customers as rejects. Be that as it may be, these outer tubs cannot be considered as scrap as the same were not damaged during the manufacturing of the finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise officers in the presence of the appellant's representative and no objection has been placed on record before me about the manner of stock taking. Thus, the plea of not taking proper stocktaking has been rightly rejected by the original authority as an after thought. The demand of Modvat credit amounting to Rs. 36,343/- and Rs. 476/- involved on the inputs found short is, therefore, upheld." It can be noticed that the lower authorities have not considered the pleadings of appellant in totality. I find from records that the appellant has prepared a Good receipt note dated 22-11-1998 for the receipt of 230 outer tubs in the factory premises. The said GRN indicates that the goods were sent for inspection and there is an acceptance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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