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TMI Blog2019 (8) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... n of duty by clandestinely removing some of the MS ingots produced by it on the basis of parallel invoices, the officers of the Anti Evasion Branch on 31.07.2012 visited the factory of the Appellant and conducted physical verification of stock in the factory premises of the Appellant, with the help of factory staff and also in presence of Sh. Nitish Ranjan, Authorised Representative of the Appellant and two other independent witnesses. A physical stock verification report was prepared on the spot and signatures of Sh. Anshul Aggarwal, erstwhile Director of the unit, Sh. Nitish Ranjan, then Authorised signatory of the Appellant and the two independent witnesses, were taken on the said report. The weighment slips, records & invoices of the relevant period and photocopy of the relevant page of RG-1 register were resumed under resumption memo. 4. The officers conducted the physical verification of the stock of the appellant, within a period of 4 hours and 30 minutes, wherein they concluded that there is a shortage of 128.435 MT of MS Ingots. 5. It further appeared that the Appellant had clandestinely removed the MS Ingots on the basis of three invoices having no.017/20.07.2011 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- 5,00,897/- 10,018/- 5,009/- 5,15,924/- Total 422.165 1,35,26,042/- 15,71,924/- 31,439/- 15,719/- 16,19,082/- 8. Therefore the department issued Show Cause Notice for the following demands:- * Shortage of finished goods (in stock) weighing 128.435M.T., alleged to have been cleared clandestinely without issue of invoice and without payment of central excise duty amounting to Rs. 5,15,924/-. * Clandestine clearances of 208.98 MT Ingots made without issuance and without payment of central excise duty amounting to Rs. 8,39,473/- alleged on the basis of weighment slips recovered from Shri Devki Nandan; and * Clandestine clearance of 84.75 MT of MS Ingots made under the cover of parallel invoices and without entering in their books of account and without payment of central excise duty amounting to Rs. 2,36,686/-. 9. To substantiate itsallegation, the department relied on statement of Sh. Devki Nandan, weigh bridge incharge of the Appellant, recorded under the provisions of section 14 of Central Excise Act, on 31.07.2011, and at the time when the eight weighment slips were recovered from his possession. It was stated by him that he looked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocure MS Ingots from various manufactures. After having seen copy of invoice no. 19 dated 29.07.2011 & 20 dated 29.7.2011 issued by M/S RIPL wherein 28.240 MT MS Ingots valued Rs. 8,52,848/- and 28.320 MT MS Ingots valued Rs. 8,55,264/- had been shown respectively dispatched to them, he admitted that they had received the goods mentioned in these invoices, but did not enter the same in their statutory records. He admitted that these consignments were not entered in their statutory records as the same was received without cover of invoice. After having seen the weighment slip No. 8 dated 29.07.2012 he admitted that they have received 274 pcs. Of MS Ingots weighing 31035 Kgs. From M/s RIPL which was not entered in their statutory records as the same was received without cover of central excise invoice. He admitted the receipt of MS Ingots under the parallel invoices and that evidenced under weighment slip, have not been entered in their records. These MS Ingots were used in manufacture of TMT Bars which they cleared clandestinely without entering in the statutory records. He stated that he was willing to deposit Central Excise duty of Rs. 3,25,859/- alongwith interest of Rs. 33,983/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips, they had received 110.545 MT MS Ingots from M/s RIPL Bhiwadi which was not entered in their statutory records. He admitted their mistake and stated that he was ready to deposit central excise duty along with interest in respect of goods manufactured out of the aforesaid MS ingots and clandestinely clearance thereof by them. Sh. Joshi in his further statement dated 3.12.2012 again confirmed his above statements. 15. The adjudicating authority confirmed the show cause notice on contest alongwith equal penalty on the appellant company and further appropriated the duty from the amount already deposited during investigation. Further, penalty of Rs. 10 lakhs was imposed on the Director - Shri Anshul Agarwal and Rs. 5 lakhs on the Authorised Signatory Shri Nitish Ranjan, under Rule 26 of Central Excise Rule, 2002. Being aggrieved, the appellants preferred appeal before the Commissioner (Appeals) who vide the impugned order have been pleased to reject the appeals on the principal of preponderance of probability, as laid down by the Hon'ble Supreme Court in the case of Collector of Customs, Madras and Others vs. Bhoormull - 1983 (13) ELT 1546, wherein it has been held that Revenue/ De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the personal penalties imposed on the Director and the other Authorised Signatory are also fit to be set aside. 20. Opposing the appeals the learned Authorised Representative for Revenue states that stock taking was done in presence of two independent witnesses with the assistance of the staff of the appellant and thus the same cannot be questioned at a later point of time. He further relies on the findings of the court below, and prays for dismissing the appeals. 21. Having considered the rival contentions and on perusal of the record, I find that so far the alleged shortage of finished goods of 128.435 MT is concerned, there may be a possibility of variation of 10% to 15%, but the shortage cannot be stated to be illusory, as worked out during physical stock taking. The panchnama / mahazar was drawn in front of two independent witnesses who witnessed the physical stock taking. In case of disagreement of the method of stock taking the appellant should have raised objection during the time of stock taking or soon thereafter or within a period of few days (one week), which is not the case. Further, the appellant has not examined the panchnama witness before the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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