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M/s Haldyn Glass Ltd. Versus Commissioner of Central Excise, Mumbai-II

2015 (11) TMI 1237 - CESTAT MUMBAI

Confiscation of goods - Evasion of duty - Clandestine removal of goods - Held that:- Appellant factory was having an average stock of two crore bottles. As per the finding in the Order-in-Original, the shortages found by the Revenue is 11,61,269 bottles and excess worked out as 3,64,682 bottles. Thus, the net shortage is 7,90,387, as worked out by Revenue. For calculation purpose rounding off to 8 lakh bottles, in view of the average stock of 2 crore bottles, the shortage worked out is about 4%. .....

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e held to be perfect. Thus, I hold that the shortages or excess found is the normal variation in stock taking for which no adverse intention is called for. Accordingly, I allow the appeal and set aside the impugned order. - Decided in favour of assessee. - Appeal No. E/224/91 - Final Order No. A/1697/2015-WZB/SMB - Dated:- 30-4-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri Yogesh S Patki, Advocate For the Respondent : Shri S.V. Shashtri, AC (AR) ORDER Per: Shri Anil Cho .....

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305.64 (Basic) and ₹ 22,065.20 (Special Excise duty) was confirmed under Rule 9 of Central Excise Rules, 1944 read with Section 11A of the Act. Further penalty of ₹ 20,000/- was imposed on the appellant under Rule 9(2), 52A, 173Q and/or 226 of Central Excise Rules, 1944. Further, order was made for confiscation of land, building, plant, machineries and materials used in connection of the manufacture and production , storage, removal or disposal of such goods and any other excisable g .....

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n No. 30 of 2000 and vide order dated 6.10. 2003, the Hon'ble High Court found that the order of the Tribunal was passed after a gap of two years from the date of hearing and accordingly, the same was set aside without entering into the merits of the order of the Tribunal and the matter was remanded back with the direction of hearing the matter afresh after giving reasonable opportunity to the appellant, following the principles of natural justice. 3. Heard the parties. 4. The learned Counse .....

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nd hence they approached the department to allow them to store the goods in adjacent premises. However, the permission was not granted despite several correspondence by the appellant including the letter sent to the Collector of Central Excise and Customs during the period 1988-99. On 27.1.90 at about 8.30 pm there was a fire in their factory, which affected a part of the bonded store room. The appellant had immediately informed the incidence of fire to concerned authority i.e. Fire Brigade and .....

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the factory premises as well as various places of the building under the supervision of the Central Excise officer, shortage was ascertained as compared to the RG-1 register, the same is detailed in the Annexure. On the alleged shortages, a short payment of Central Excise duty was computed of ₹ 4,41,305.64 (Basic duty) and ₹ 22,065.20 (Special Excise duty), which was directed to be paid or debited immediately. The appellant immediately replied stating that the alleged shortages as pe .....

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age in the list annexed with letter of the Assistant Collector dated 21.2.1990, were actually cleared after 10.2.1990, the same was informed to the Revenue along with copy of the gate pass. Despite this, there was no response from the Revenue. It is the contention of the appellant that stock taking have not been done properly and there are several discrepancies. 4.1 As regards the alleged excess goods, it was pointed out by the appellant that stock taking not having been properly done, the exces .....

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ing of the stock lying in premises. Further, the said Mr. Amin has also accepted the correctness of stock taking and stock position ascertained and the variations in stock viz. shortage and excess detected. It was further stated that Mr. P.R. Shetty, another employee of the appellant has deposed that the stock of excisable goods ascertained physically was the actual stock lying in the premises and that he was present personally during the stock taking and being satisfied accepted the shortage an .....

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ppellant company failed to determine proper amount of Central Excise duty leviable thereon and to pay the same and further to clear the said goods only under the cover of Central Excise document and further claim to account for the excisable goods found in excess as mentioned and have thus, contravened the provisions of Act and the Rules. Accordingly, it was proposed to recover the same with a further proposal as to why not penalty be imposed under Rules 173Q and Rule 9(2), Rule 52A read with Ru .....

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further stated that inspite of notice given within 48 hours of fire, i.e. on 29.1.1990, no response was received and stock taking was taken up only on 15.2.1990 and secondly all the companys documents were kept in the factory and the stock taking was undertaken on the same date at about 6.30 p.m. by which time, the office of the appellant had been closed. There were only workmen who were working in the second shift available in the premises. It is further mentioned that due to night and lack o .....

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to be in excess were seized under Panchanama. On the very next date on 21.2.1990, as aforementioned, letter was issued demanding the excise duty short paid on the alleged discrepancies found in the stock. It is further on record that the appellant has pointed out the discrepancies and also prayed for fresh stock taking which was denied, without any ostensible reason. 4.5 The Counsel for the appellant urges that discrepancies found, the shortage is about 1%. It is not deniable that glass being a .....

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essee was engaged in manufacturing of steel rolled products. On 2.8.2002 a truck belonging to the firm was intercepted and on inquiry it was noticed that the bill was for 13.585 MT of MS Angles. On weighment on a nearby Kanta, the material loaded was found to be 12.255 MTs of re-rollable scrap. On scrutiny of the records, it was found that the assessee had not issued any invoice/duty paying document for the re-rollable scrap which was being transported in the said truck nor the same was accoun .....

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essee company and the mahazar, clearly showing shortage. The assessees defence which had been accepted by the Commissioner (Appeals) to the effect that no proper investigation was conducted and therefore, the shortages cannot be ascertained. However, the Tribunal found that the mahazar clearly recorded the shortage and the same was duly acknowledge by the Manager about correct recording of the shortage. It was further fact that Inspector of Central Excise stated that he was not present during t .....

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