TMI Blog2006 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ration are that the Officers of the preventive section of Central Excise visited the factory of the appellant and during the stock taking found a difference in the physical stock of finished 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re shown as produced by the appellant but are not able account for the dispatches of the same on payment of duty, hence in the absence of any such evidence the duty is payable by the appellant. 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 proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Pharmaceuticals Ltd. - 2001 (136) E.L.T. 1057 and Universal Steel Agencies v. CC, Kandla - 2001 (138) E.L.T. 360 (T). 9.We now consider whether the ratio of the above decisions of the Tribunal 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the day. The said production slip indicated 1504 nos. of the blankets being transferred to warehouse. This fact remains undisputed by the appellants. The appellants are not able to show from the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It can be seen that the demand on this issue from the appellant is in the form of duty that is payable on the finished goods that could have been manufactured by the appellant. The demand of the duty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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