TMI Blog2017 (11) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... inished goods vide invoices. the same were ignored and not taken into account for no reason - also, there is no specific instance found inspite of all the exercise, of clandestine removal or attempted clandestine removal on the part of the appellants - appeal allowed - decided in favor of appellant. - E/70481-70482/2017-EX[SM] - A/71370-71371/2017-SM[BR] - Dated:- 29-9-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Amit Awasthi, Advocate, for Appellant Shri Sandeep Kumar Singh, Deputy Commissioner(AR), for Respondent ORDER Per: Anil Choudhary The issue in these two appeals is whether the impugned Order-in-Appeal, conforming the confiscation with respect to raw material and finished goods apparently found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110 kgs. Similarly, Shri Mishra with the help of their staff took the physical stock of M.S. Angle, M.S. Billets and End cuttings and found excess quantity of 63.11MT of M.S. Angles 50.825MT of Billets. Since, the entries were made up to 24.07.2014 in Central Excise records and no records were available about the receipt of raw material and production of finished goods during 25.07.2014 to 29.07.2014. Hence, the visiting officers took the record of stock of 24 th July 2014 to determine the difference of stock. The details of excess stock found, as per Annexure-A to the is as follows:- No. Item Quantity as per physical verification (in pieces) Weigh t / piece (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also in the meantime vide their letter dazed 01/08/2014 explained that the records were not updated till 30 th July, 2014 (date of inspection) because the person maintaining the records did not attend the factors/ office during the intervening period. It was also pleaded that only for the reason of the statutory records being not updated, due to absence of the concerned clerk, does not ipso facto lead to the conclusion that the appellant had of clearing their goods manufactured. clandestinely. 3. Thereafter, show cause notice dated 28.01.2015 was issued, alleging that the appellant have contravened the provisions of Rule 10,9(5) 12 of CER, 2002. Further, alleging that the excess stock of raw material/finished goods was as the resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct require that search/inspection needs to be done in presence of two independent witnesses of the locality where the search is being done, further ground taken is that the so called stock verification was done only by way of eye estimation and no inventory of goods undertaken on the basis of weight, size and quantity of product. Further, the appellant uses the ingots in their products, after cutting the sane to appropriate similar size. There was also several cut pieces of ingots lying in the factory which has not been properly counted and as such, have been counted as full length ingots, which was reason for wrong conclusion of visiting officers. Further, it is admitted fact from perusal of the panchnama that no proper weighment was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials clandestinely without bills . This statement was given in response to question asking- that why you have not accounted the same and also sign on the last page of the panchnama, detention memo, which was later on converted to seizer. 7. It was urged that the said statement is very vague and does not lead to any adverse inference against the appellant in absence of any co-rroborative evidence. Further, the said Mr. Dixit had retracted the said statement subsequently, by affidavit/sworn on 22th November, 2015. It was also urged that not a single instance of attempt to clandestinely was found by the revenue, except bold allegation made show cause notice. 8. The learned Commissioner (Appeals) have recorded the Endings that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation. However, he reduced the amount of redemption fine and penalty. As regards appellant Shri R.K. Dixit the learned Commissioner (Appeals) observed that he is old person of about 68 years of age, rarely visits the factory and there is absolutely no complicity on his part. In fact the whole exercise of physical weigment was orchestrated by the officers. There is no definite role on his part to make him liable for invocation of the panel provision under Rule 26 of CER, 2002. 9. Being aggrieved, the appellants are before this Tribunal. The learned Counsel further urges that although the Commissioner (Appeals) have appreciated the defect in the stocktaking and have also appreciated the reconciliation filed before him that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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