TMI Blog2016 (5) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... /6/08 was recorded in the dead of the night and as such no reliance can be placed on any admissions made in such a statement which can not be said to be freely given. It also indicates the high handedness adopted by the inspection team during the course of inspection and recording of statement. I further hold that deposit of tax does not amount to admission on the part of the appellant. The appellant have neither shown or admitted clearance in the subsequent returns and nor have admitted any clandestine removal categorically. On being questioned, pointedly for the alleged shortage it was stated by the Director, the production figures are reported by the person who is not much educated and as such there are discrepancies due to inadvertence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was stored separately. Total ingot was found to be 3973 numbers. According on calculation, stock of MS ingots was found to be 433.931 MT (3973 X 109.22 KG). Similarly average weight of one bundle of MS bar was found to be 99.20 KG multiplied with 24,639 bundles and added with the weight of loose bars lying scattered was found to be 2449.680 MT (24639 x 99.20+5490 KG). There was no clearance of finished goods on the date of visit. The stock so estimated was compared with the opening stock on 18/9/2008 and discrepancy or shortage was found as follows: Commodity Opening Balance of finished goods as per record as on 18.06.2008 Actual stock of finished goods found in physical verification on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ingots are very hot and cannot be touched by hand. Production is recorded on estimated weight. Further the person reporting the production figures is hardly matriculate and production and stock figures are bound to vary on actual weighment. He admitted the contents of his statement dated 19/6/08. It appeared to revenue that in absence of cogent explanation the appellant have surreptitiously cleared the final products found short without payment of appropriate duty and without observing the mandate of law and have suppressed the fact of such removal with intent to evade payment of duty. Accordingly, the appellant was required to show cause as to why proposed demand be not confirmed and appropriated and further why not penalty be impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet annexed to the panchnama, for verification of stock states that average weight of one MS ingot was assertained after weighment of four bundles and thereafter the said weight was multiplied with the number of ingots and accordingly the stock was assessed at 433.91 MT. Similarly, for ascertaining the stock of MS bar average weight of one bundle of MS bar was ascertained at 99.20 KG and the said weight was multiplied with the number of bundles and further the loose MS bar were gathered on a vehicle and weighed accordingly aggregating 2449.680 MT. The Ld. Counsel further urges that the statement recorded on 19/6/08 have been recorded sometime after 12 o'clock in the night and before 4 AM. Thus, statement recorded in the dead of night w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. Further, MS Bars were of different diameters such as, 10 mm, 16 mm, 20 mm and 25 mm. Thus, if MS Bars are cut to same size, still the weight is bound to vary. It is further urged that less than 1% of the stock was actually weighed and the average weight was multiplied with the number of MS Ingots. Thus, there is bound to be discrepancy and variation in the physical stock and that as per the books records. Accordingly, the confirmation of duty and levy of penalty is unjustified. The ld.Counsel further relies on the rulings in the case of Shirpur Shetkari SSK Ltd. Vs. CCE: 2007 (209) ELT 442, where it has been held that shortage of finished goods by itself cannot be a ground for alleging clandestine removal. The said ruling was confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is discrepancy in the manner of stock taking. Such manner of stocktaking can give only an estimation and an approximate result. Based on such an approximate calculation which is in the nature of eye estimation, no adverse inference can be drawn against the appellant. It is further evident that the statement recorded of the director on 19/6/08 was recorded in the dead of the night and as such no reliance can be placed on any admissions made in such a statement which can not be said to be freely given. It also indicates the high handedness adopted by the inspection team during the course of inspection and recording of statement. I further hold that deposit of tax does not amount to admission on the part of the appellant. The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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