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TMI Blog2022 (7) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... h, II, Kolkata (Tribunal) in order No. FO/A/7593 of 2019. The revenue has raised the following substantial questions of law for consideration :- "1. Whether in the de novo proceedings, the learned tribunal has followed the direction of the Hon'ble High Court, as given by the order dated 20th February, 2019, in its true sense as regards to the points that what was the stock notionally determined and actually determined by the respondent - assessee and how it was adjusted in their accounts without being reflected in the Central Excise records ? 2. Whether the learned tribunal, being the last fact finding authority, has rightly followed the direction of the Hon'ble High Court, as given by the order dated 20th February, 2019, by accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal dated 13th March, 2019. Therefore, the matter was remanded to examine as to whether the facts were identical as that of the earlier decision. Pursuant to such order of remand the Tribunal took up the matter for de novo consideration and on going through the order passed by the Tribunal we find an elaborate exercise has been done by the Tribunal to compare the facts of the decision rendered by the Tribunal earlier with that of the facts of the case on hand and after taking into consideration the facts, the Tribunal opined that they are identical. More importantly, the assessee had filed a reconciliation statement for the period in dispute which was not objected by the revenue and the Tribunal on facts was satisfied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Tariff Item 25 a) Pig Iron - 2% b) Iron in any crude form - 25% The above percentage should be used as a guideline and while deciding cases the investigation reports of the Plant authority referred to above should also be taken into account. 4. All pending cases of stock taking losses may be adjudicated quickly in the light of these instructions." In terms of the above Circular, the condonation of losses for pig iron have been fixed at 2% and for the iron in any crude form at 25% and with regard to tariff item 26AA and 26, it was fixed at 1%. The assessee had filed a reconciliation statement before the Tribunal which shows that the percentage of loss was well within the parameters fixed by the CBEC in the Circular stated ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic sector undertakings Rashtriya Ispat Nigam is doing all these things with an intention to evade payment of duty. Further, this Bench had occasion to deal with similar issues in the following cases : (a) Steel Authority of India Ltd. v. CCE. Mysore - 2006 (200) ELT 229 (Tri.-Bang.) where a similar situation was examined and it was decided that the shortage is inflated due to errors in taking opening balance and a physical stock. It is also held that considering the practical difficulties in estimating the actual stock and in view of the submissions made by the appellants, the demand of duty made by the Adjudicating Authority cannot be sustained. The ratio of that case would be applicable for this case also. In the case decided by us a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock position is arrived at on the basis of estimation, the allegation of shortage of stock and consequent illicit removal of finished goods cannot be sustained. A plethora of case laws hold that provisions of Section 11A would apply in making demands of duty on deficiencies found during stock taking. The appellants based many reasons for discrepancies between the RG-1 and the physical stock. For example, RG-1 is only based on estimated production and not based on actual weighment. Physical stock is also based on estimation of weight on the basis of volumetric estimate and conversion to theoretic weight based on sectional weight. A comparison between two estimation is inherently inaccurate. Losses like cutting, grinding and milling, sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that in the case of Steel Authority of India Ltd. vs. Commissioner of Central Excise, Mysore, 2006 (200) E.L.T. 229 (Tri. - Bang.), which decision was followed by the Tribunal, pertains to the case of the assessee in respect of their unit at Mysore and the said decision has attained finality. It is not shown to us that the Department has preferred any appeal against the said decision. Therefore, the Department is bound to adopt consistent approach in the matter. Further, we are surprised to note that the period covered by the show-cause notices was as on 31st March, 1989, 31st March, 1990 and 31st March, 1991. Two show-cause notices were issued on January 30, 1991 and March 31, 1992 for which the assessee had submitted replies on Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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