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Kamdhenu Ispat Ltd. Versus Commissioner of C. Ex. & S.T., Jaipur-I

2015 (6) TMI 982 - CESTAT NEW DELHI

Clandestine removal of goods - short found finished goods - stock taking of CTD and TMT bars was done on the basis of average taken up by weighing 5 bundles of each size - Held that:- in the absence of any cogent evidence in support of the allegation of clandestine removal except the average weighment done in this case the charge remains unproved. Further, in reply to the show cause notice appellant has given the details of weighment and as per the weighment the difference works out to be around .....

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gation that appellant has cleared the goods clandestinely. 2. The facts of the case are that appellant is a manufacturer of CTD and TMT bars and Ingots. On 15-7-2010 at about 7 pm an investigation was conducted at the premises of the appellant and stock taking was done on the basis of average taken up by weighing 5 bundles of each size and it was concluded that as per records the quantity shown is 1092.370 MT. Whereas, on the basis of average weight taken it was found that 911.47 MT. Theref .....

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nalty was also imposed by both the lower authorities. Aggrieved from the said order appellant is before me. 3. The Ld. Counsel for the appellant appeared before me and submits that weighment has been done on average basis which is not correct. Moreover, in reply to the show cause notice on the basis of weighment done by the investigation team they file the chart before the Adjudicating Authority which works out to a shortage of near about 3.3 MT which is a meager quantity. Therefore, there .....

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mand has been confirmed against the appellant which is not sustainable. In these terms he prayed that impugned order be set aside. 4. On the other hand Ld. AR submits that the shortage works out to near about 16% in this case and weighment has been done on physical verification of 5 bundle of each size and thereafter average has been taken which is multiplied by number of bundles and weight has been taken. Therefore, weighment has been done on the best method available at the relevant time .....

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in this case charge of clandestine removal has been alleged against the appellant on the basis of shortages found on finished; goods wherein the weighment has been done on the basis of number of bundles and average of 5 bundles of each size. I find that in this case there are near about 11500 bundles involved and average has been taken on the basis of weighment of 5 bundles. For instance, if we take the weighment done during the course of investigation i.e. for 8 MM the weight of the bundles is .....

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75 kgs. and two bundles are of 73 kgs. If bundle of 70 kgs. is not there then average works out to 74 kgs. This is a difference of around 1 kg. per bundle. Same is with the size of 10 MM whereas 3 bundles were found to be of 92 kgs. and 1 bundle of 90 kgs. and 1 bundle of 89 kgs. In this case also if 3 bundles of 92 kgs. and 1 bundle of 90 kgs. is taken then also average works out to 91.75 kgs. per bundle. In the case of size of 25 MM there are 2 bundles of 46 kgs. 2 bundles of 45 kgs. and 1 bu .....

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