TMI Blog2016 (5) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... e is more than 10%. Accordingly, 10% variation as normal is allowed, but over and above 10%, in absence of cogent explanation, I hold that the assessee is liable to duty on the same. Period of limitation - Held that:- in view of the difference of more than 10% in the stock of MS TMT Bars and for want of cogent explanation, the extended period of limitation is applicable and invokable. Imposition of penalty - Rules 25,27 of CER, 2004 read with Section11AC of the Act - Held that:- so far as the penalty is concerned under Rule 26, in absence of any confiscation of goods and in absence of any evidence of clandestine removal except a strong presumption, penalty is set aside. Penalty under Rule 27 is confirmed. - Decided partly in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the stock record as per Book was 1314.325 MT and shortage found was 391.767 MT. The stock tallied in case of MS angle, MS Channels, being negligible difference of two tons. In case of MS Ingots, the stock as per book record was 1785.059 MT and the stock physically found was 1560.790 MT, there has been difference and shortage of 224.269 MT. During the course of stock verification, the exercise was started at 9.15 hours on 21.09.2011 and ended at 2.05 hours on 22.09.2011. Regarding the manner to be adopted for stock taking of M.S.Ingots, the statement of Shri Ritesh Jain, Authorized Signatory was recorded, wherein he stated that he is satisfied with the manner of stock taking. In respect of difference in stock, he stated that the differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation of stock was on estimation basis and there is bound to be variation. In such circumstances, no case of clandestine removal is made. The appellant further contended that there are two independent shed in the factory, one is for ingot furnace and the other is for rolling mill. They manufacture ingot and also purchase the same, which are kept separately. When the manufactured ingot are transferred to re-rolling section, then the same merge with purchased ingot (Input) in the re-rolling mill. Some part of ingot manufactured, are in hot condition pursuant to manufacture and some ingot are always in the furnace of re-rolling mill, which cannot be seen as manufacturing process require high temperature. Further, during the course of inspecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the weightment was done on weigh-bridge, having the capacity of 60,000 Kg., when the weight of bundle is 88 kg. to 94 kg. It is further stated that in such matter, the valuation is only approximation and the difference so found approprixately 10%, no adverse inference is called for. 4. SCN was adjudicated vide OIO and the demand was confirmed and appropriated and further interest was demanded and penalty was imposed of equal amount under Rule 25 read with Section 11AC of the Act and Penalty of ₹ 5,000/- under Rule 27 of the CCR, 2002. 5. Being aggrieved, the appellant preferred an appeal before the ld.Commissioner (Appeals), who has rejected the appeal observing that the contentions of the appellant as regards method of stock ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The ld.Counsel relies on the ruling of the co-ordinate benches of this Tribunal in the cases of (i) Micro Forge (I) Pvt. Ltd. Vs. Commr. of Central Excise, Rajkot : 2004 (169) ELT 251 (Tri.-Mumbai), (ii) Commr. of Central Excise, Meerut I Vs. Sarvottam Rolling Mills (P) Ltd. : 2013 (297) ELT 385 (Tri.- Del.), (iii) RHL Profiles Ltd. Vs. Commr. of Central Excise, Kanpur : 2012 (285) ELT 103 (Tri.-Del.), wherein in the similar circumstances of stock taking, where physical verification was done by taking average weight of a sample or bundle of goods and then multiplied number of pieces of the relevant items, held on such basis only on average estimation and such method of stock taking can only lead to a suspicion of shortage, but cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued on 26.06.2000. The Department could not establish that there was any suppression of facts or a fraud on the part of the respondent assessee. It was held that the honest mistake committed in maintenance of stock register etc. was admitted by the Managing Director of the respondent assessee and in absence of any willful mis-statement, fraud or suppression of facts, the extended period of limitation is not attracted. Accordingly, he prays for allowing the appeal. 7. The ld.A.R. for the Revenue relies on the impugned order. He further states that the competent person or the authorized signatory of the appellant, have expressed satisfaction at the time of inspection to the method of stock taking and have further agreed to pay tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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