TMI Blog2017 (3) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal allowed - decided in favor of appellant. - E/1015/07-MUM - A/86075/17/SMB - Dated:- 15-2-2017 - Mr. Ramesh Nair, Member ( Judicial ) Shri.H.G. Dharmadhikari, Advocate for appellant Shri M.R. Melvin, Supdt. (AR) for respondent ORDER Per Ramesh Nair 1. The appellants are engaged in the manufacture of excisable goods falling under Chapter No.27, 28, 29, 34, 38 39 of the CETA, 1985. On verification of financial statements and tax audit report, it was found difference in the physical stock and the stock appearing in the RG-1 register in respect of finished goods as well as inputs. Difference was worked out appearing in the RG-1 stock with the stock appearing in the 3 CD report and the balance sheet. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D, whereas in the present case the difference is in the RG-1, balance sheet and form 3 CD, due to this difference of stock, the Tribunal order cannot be applied in the present case. He place reliance in the case of Martin Harris Laboratories 2010 (260) ELT 31 (P H) and Ennore Foundries Ltd. 2007 (211) ELT 434 (Tri). 4. I have carefully considered the submissions made by both sides. I find that the department demanded duty on shortage of inputs as well as on finished goods only on the theoretical difference found in comparison of 3 CD report, balance sheet and RG-1. It is not the case of the department that the shortage of quantity was otherwise disposed of out of the factory of the appellant. Therefore, without any evidence of remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods would not have been included. In that situation comparison between different kind of products between finished products lying in stock and stock computation of semi-finished products made in the return to the Income-tax Department does not justify finding that there has been shortage of excisable goods. While the Departmental Representative adopts the reasoning in the Commissioner s order he was unable to explain the difference on the basis of computation. His emphasis on the other aspect of the matter does not have the effect of showing that the allegations with regard to these have been established. The said decision of the Tribunal has been affirmed by the Hon'ble Supreme Court. In the instant case, the facts are similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. I am therefore of the view that merely for smaller quantity found short by the internal auditor and reported in 3CD report, credit cannot be denied. Therefore impugned order is set aside. Appeal is allowed. 5. From the above decision of this Tribunal in the appellant s own case on the identical facts, the present demand is not sustainable. As regards the judgements relied upon by the learned AR, on going through these judgements, I find that there are difference in facts in the relied upon judgements and in the facts of the present case. Therefore, these judgements are not directly applicable in the facts of the present case. The impugned order is set aside and the appeal is allowed. (Dictated in Court) - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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