TMI Blog2018 (6) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... re not attracted - the Annexure-A to the Panchnama is erroneous. The SCN is vitiated and not maintainable - appeal allowed. - E/70088/2016-EX[SM] - FINAL ORDER NO. 70990/2018 - Dated:- 20-3-2018 - Mr. Anil Choudhary, Member (Judicial) Shri Hrishikesh (Advocate) for Appellant Shri Sandeep Kumar Singh (Dy. Commr.) AR for Respondent ORDER Per: Anil Choudhary The issue in this appeal is whether the appellant, who is manufacturer of Diesel Engine Pump set etc., was having excessive stock of finished goods in their factory on the day of inspection 07.03.2014 so as to remove the same clandestinely within the meaning of Rule 25 Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernator 20 58 38 514000 10.30 52942 Total 2696000 217536 3. Statement of director Shri Vinay Mittal was recorded wherein he accepted the result of physical verification. Accordingly, Revenue calculated the value of excess finished goods at ₹ 26,96,000/- attracting duty of ₹ 2,17,536/-. The said excess goods appeared to be liable to confiscation and accordingly were seized and was subsequently released provisionally on 30 May 2014, on furnishing of bond amounting to ₹ 6,74,000/-. Further vide letter dated 10 March 2014, the appellant informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the officers at the time of inspection they have ignored to take notice that 46 8HP diesel engines had been used in the manufacture of pump sets, similarly 46 water pumps had also been used in the manufacture of pump sets. These were not considered by the officers at the time of inspection leading to erroneous calculations. The learned Counsel further points out from the Annexure-A to the Panchnama that in the column of opening balance no figures has be shown and prima facie it appears that the Annexure-A was not prepared correctly, resulting into erroneous conclusion of excessive finished goods. The learned counsel further points out that the Order-in-Original was ex-parte for want of proper opportunity of hearing. The appellant had s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of their finished goods stock as on 07 March, 2014, the day of inspection, a copy of which is available at Page 82 of the appeal paper book. It is further pointed out that the discrepancies in the calculations made in Annexure-A to the Panchnama as noticed herein above. Thus, there is no basis for the order of confiscation and penalty. Accordingly, he prays for setting aside the impugned order with consequential relief. The learned counsel also states by way of alternative argument that even if there were some finished goods in excess in the factory there is no presumption of clandestine removal and thus the provisions of Rule 25 of Central Excise Rules read with Section 11 AC of the Act are not attracted. Further there is no allegation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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