TMI Blog2017 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... Per Archana Wadhwa After hearing both the sides duly represented by Shri A.K. Prasad, Advocate for the Appellant and Shri R.K. Mishra, DR for the Respondent, I find that the appellants are engaged in the manufacture of sponge iron, MS Billets and TMT Bars. The sponge iron is manufactured out of iron ore, coal and dolomite. The sponge iron is partly sold, as such, and partly used in the factory for the manufacture of MS Billets. The MS Billets, in turn, are also partly sold, as such, and partly used in the factory in the manufacture of TMT Bars. The TMT Bars are sold to a number of parties. 2. The local Central Excise officers visited the factory and office premises of the appellants on 17.02.2009 and 18.02.2009. They seized some records and also conducted stock taking of final products. Statements of Shri Sandeep Agrawal, Deputy General Manager (Commercial), were recorded on 17.02.2009 and 18.02.2009. Statement of Shri Anand Tiwari, Deputy Manager (Process Division- Sponge Iron) was also recorded on 18.02.2009. 3. On the basis of the seized records, the investigations made and the statements recorded the proceedings were initiated against the appellant proposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons signature, etc. A computer printout is not a primary evidence, since it carries no signature and is prone to easy manipulation. Hence, Section 36B of the Central Excise Act, 1944, has allowed computer printouts to be used as evidence, but with strict conditions. The conditions, inter-alia, provide that the printout should be produced by a computer during the period over which the computer was used regularly to store or process information for the purpose of any activity regularly carried on over that period by the person who was in lawful control over the use of the computer. The condition also provides that during the said period there was regularly supplied to the computer in the ordinary course of said activities information of a kind contained in the statement or of the kind from which the information so contained is derived and that the information should have been supplied to the computer in the course of the said activities [Section 36B(2) refers]. That is why section 36B(4) makes it mandatory for production of a certificate by a person occupying a responsible official position listing out the above precautions. No such certificate has been produced in the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has held there were discrepancies is 13. For the remaining 7 days the excess recorded in Record 61 comes to 98.77 MTs. Thus, overall, the RG-I had recorded an excess of 3.74 MTs ( 102.510-98.77). In other words, the appellants had paid duty in respect of 3.74 MTs of TMT bars, more than that recorded in Record No: 61. Hence, the demand on this account is unsustainable. (iv) Demand of ₹ 1,15,657/- in respect of 43.660 MTs of TMT bars valued at ₹ 11,12,886/-, being the quantity used in the factory in civil works for various extension projects, which were not covered by notification No: 67/95-CE dated 16.03.1995. In this context, it is submitted that the said quantity of TMT bars were utilized in the factory for various fabrication works. The quantity utilized for different works were provided to the Commissioner and is mentioned in para 2.3.2 of the Appeal. These are all capital goods before their assimilation in the civil structure. E.g. Storage Tanks are specifically covered in the definition of capital goods under Rule 2(a) (A) (vii) of the Cenvat Credit Rules, 2004. Further, pipes, fitting and structures for boiler systems are also eligible for C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g adopted by the Adjudicating Authority for confirmation of demand and submits that the discrepancies pointed out by the Revenue lead to the invertible effect of manufacture and removal of the appellant s final product without payment of duty. 6. After appreciating the submissions made by both the sides, I find that the duty of ₹ 59,175/- stands confirmed in respect of shortages detected during the course of verification of the appellants stock at the time of visit of the officers. Such shortages are to the tune of around 0.32 % of the total quantity. The appellants have attributed the same to the accumulated losses over the period of time as also to the fact that whereas the stock taking was undertaken on the basis of sectional weight clearances are effected on the basis of actual weighment. I find that apart from the said shortages there is no other evidence on record indicating that the short found goods stands removed by the assessee in the clandestine manner. The case laws relied upon by the appellant is to the effect that no duty can be confirmed on the basis of such shortages. As such by following the same, I set aside the confirmation of the said demand. 7. D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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