TMI Blog2017 (9) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... over a five year period, are well within acceptable limits. If the department makes an allegation that a portion of the imported goods have not been used for the intended purpose, it will also have to establish that allegation and adduce proof that the goods constituting the short fall were clandestinely removed, or sold or transferred in any other manner in violation of the conditions of the import. This is a sine qua non. In the absence of any such proof or evidence the allegation of the department will have no legs to stand on. Appeal dismissed - decided against Revenue. - Appeal No. C/638/2009 - Final Order No. A/31444/2017 - Dated:- 6-9-2017 - Mr. M. V. Ravindran, Member ( Judicial ) And Mr. Madhu Mohan Damodhar, Member ( Tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has erred in setting aside the Order-in-Original on the ground that there was no allegation that goods were diverted for other purposes then that intended; that Commissioner has also not appreciated the findings of adjudicating authority that respondent did not furnish any specific reasons as to why they accepted lesser quantities then those shown in the Bills of Entry. 3. On the other hand, on behalf of the Respondent Ld. Counsel Shri R. Muralidhar submits that the shortage is very small in terms of percentage. He also relies upon the ratio of the Tribunals decision in the case of CCE, Rohtak Vs. Haryana Oil Soya Ltd., 2006 (202) ELT 56 (Tri.- Del) where it was held that when respondent has not received the imported goods, he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 123.904 MTS arrived in the at earlier paragraph, the loss would be only 0.57%. We are of the considered view, that such negligible loss percentages, that too over a five year period, are well within acceptable limits. This is the view, that has also been taken in a number of decisions by higher appellate fora. 6. We also find ourselves in agreement with findings of the lower appellate authority that there was no allegation against respondent that goods were diverted for other purpose than the intended one. If the department makes an allegation that a portion of the imported goods have not been used for the intended purpose, it will also have to establish that allegation and adduce proof that the goods constituting the short fall were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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