TMI Blog2018 (8) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as to why two different and contra conclusions stand drawn by the appellate authority in respect of raw material and finished products. Apart from the alleged shortages, even if considered to be correct reflection of facts, there is no other evidence on record to corroborate the charges of clandestine removal and clearance of the final product - It is well-settled law that such charges are required to be established by production of positive and tangible evidence and the onus to discharge the same lies heavily on the Revenue. No further investigations stand made by the Revenue to corroboroate the said allegations, in the absence of which the findings arrived at by the lower authorities cannot be upheld. Appeal dismissed - decided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing confirmation of duty of ₹ 33,19,705/- on the allegations of clandestine manufacture and removal of their final product. The notice also proposed confirmation of demand to the extent of ₹ 10,42,553/- in respect of shortages of raw materials along with proposal to impose penalties on the manufacturing unit as also on Shri Ankur Agarwal, Director of the firm. The said show cause notice culminated into an order passed by the original adjudicating authority confirming the demands and imposing penalties of equivalent amount on the firm and penlaty of ₹ 3.00 Lakhs on the Director. 4. On appeal against the said order, Commissioner(Appeals) set aside the confirmation of demand in respect of shortage of raw materials and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited the amount of duty of ₹ 10,42,553/- involved, but there is no evidence on record to suggest any clandestine removal of the alleged short found goods/inputs. I find that since the beginning the appellants have beencontesting that the weighment of the subject goods (inputs) was done on eye estimation basis and not on the actual basis anda such method of estimated weighment (weighment on eye estimation basis) cannot be treated as authentic and in these circumstances, the allegation of the shortage in stock cannot be sustained. I find that Annexure- C to the relevant Panchnama speaks of weighment of the raw material (cenvatable inputs) on eye estimation basis and on the so called physical verification, the quantity of stock o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f eye estimation is prone to error. It may result in wide variation. It is not the accurate and authentic method to ascertain the weight of the physical stock lying in the factoyr. There is every chance of the error creeping in such weighment. Verification carried out by the officers, bein gbased on eye estimation is not reliable. Hence, the demnad of duty raised on the shortages determined on the basis of the eye estimation is not sustainable. Thus, as per above judgements it has been clearly held that the shortage in stock determined on the basis of average weighment or eye estimation is not reliable and in the absence of actual weighment neither any duty liability (duty liability on account of such alleged shortage based on average ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not stand rebutted by the Revenue in their memo of appeal by producing any evidence to the contrary. As such the findings arrived at by Commissioner(Appeals) cannot be faulted upon. We fully agree with the appellate authority that in the absence of the actual weighment of the stock, the results have to be held as pseudo and not real, in which case no demand can be confirmed against them. As such we find no reasons to interfere in the impugned part of the order of Commissioner(Appeals). Accordingly, Revenue s appeal, being Appeal No.E/1516/2012-EX[DB] is rejected. 7. As regards the assessee s appeal, we note that the demand stands confirmed in respect of alleged shortges of finished goods. The appellate authority has observed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings arrived at by the lower authorities cannot be upheld. The Hon ble Allahabad High Court in the case of Commissioner of Central Excise, Kanpur v. Meenakshi Castings [2011 (274) ELT 180(All.)] as also Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise, Chandigarh v. Nachiketa PaperLtd. [2008 (225) E.L.T. 194 (P H) have held that the shortages detected by the visiting staff by themselves cannot be made the basis for arriving at the findings of clandestine removal in the absence of any independent evidence corroborating the same. As such in the light of the said pronouncements of law by the Hon ble High Courts we find no justification for upholding the allegations of clandestine removal and the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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