9911796707
TMI Blog2006 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... nished goods. On further investigation it was noticed by the officers that the appellant had not recorded 1007 of acrylic Blankets found in excess, subsequently seized and as the appellant had not satisfactorily explained absence of 497 of Acrylic Blankets and there was shortage of inputs i.e. Acrylic Yarn. A show cause notice was issued for confiscation of the seized blankets and demand of duty on the finished goods found and inputs short. The adjudicating authority vide his order in original dated 31-7-2000 dropped the proceedings initiated against the appellant. The revenue preferred an appeal against the said order, which was set aside and demand was confirmed, confiscation was ordered and penalties imposed The appellant is in appeal ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. On the point of demand of the duty on raw material found short it is submitted that the demand was in fact worked out on the raw material only and the impugned order is not traversing beyond the show cause notice. 5.Considered the submissions made by both sides at length and perused the records. Three issues arise in this case and they are dealt with in separate paras. 5.1The first issue is regarding the confiscation of the excess finished goods found in the factory of the appellant. I find that the adjudicating authority has dropped the proceedings and hence the finished goods those were seized on the date of the visit were released unconditionally without insisting on Bond, security etc. In the absence of any conditional release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal is against what has been held by the Supreme Court in Weston Components Ltd. The order of the Apex Court reads as follows :- "Order - It is contended by the learned Counsel for the appellant that redemption fine could not be imposed because the goods were no longer in the custody of the respondent-authority. It is an admitted fact that the goods were released to the appellant on an application made by it and on the appellant executing a bond. Under these circumstances if subsequently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods, then the mere fact that the goods were released on the bond being executed, would not take away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he records whether they had factually removed these 497 nos. of blankets on payment of duty. The submission of the advocate that these blankets were issued for cleaning the stains from the stock already recorded is also not substantiated by any evidence, even before me. If it is the appellant's case that these goods were in fact removed from the warehouse, they should have been able show the entries made in the records, which they are unable to do so. Since the production of the 1504 nos. of blankets is undisputed till date and out of these 1007 nos. of blankets were found un-accounted in the appellant's factory, adverse inference can be drawn in respect of 497 blankets (which is the difference between the production slip figure and physica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty is totally on the presumptive ground. Hon'ble. Supreme Court in the case of Oudh Sugar Mills case [1978 (2) E.L.T. J172] has held as under : "Show cause notice - Based on assumption and presumption - Show cause notice issued on the basis of average production, no evidence for removal of goods without payment of duty - human element plays a significant part in the process of manufacture - average production cannot be made basis for issue of show cause notice - the findings based on such show cause notice are without any tangible evidence and are based only on inferences involving unwarranted assumptions and are vitiated by an error of law." 6.The ratio of the Apex Court's judgment in the case of Oudh Sugar Mills case squarely covers th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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