TMI Blog2004 (1) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... taking into account their cross-objections, and case law referred therein. Therefore, I proceed to decide the appeal after hearing the learned SDR and going through the cross-objections of the respondents. 3. The facts as borne out from the record are as follows : On 22-8-1997 the Preventive Staff of the Central Excise, Indore, paid a surprise visit to the factory of the respondents. They checked the record as well as conducted physical verification of the stock of the finished goods and inputs lying in the factory. On physical verification, the shortage of finished goods (Iron or non-alloy steel wires) of the value of Rs. 10,48,874/- involving excise duty of Rs. 1,57,330/- and inputs (630.440 kgs of zinc) involving duty of Rs. 6,856/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the inputs. Therefore the impugned order deserves to be set aside. 5. On the other hand in the cross-objections, the respondents have alleged that correct procedure for ascertaining the shortage of finished goods was not adopted by the officials and even actual weighment of the stock was not done and as such the Commissioner (Appeals) has rightly reversed the order-in-original. They have also relied upon the ratio of the law laid down in the case of M/s. K.L. Steel Ltd. v. CCE, Meerut, 1998 (100) E.L.T. 406; Dhebar Steel Re-Rollers v. CCE. Raipur, 2002 (142) E.L.T. 194; and Prestige Metals (P) Ltd., Indore v CCE. Indore, Final Order No. A/298/NB(S), dated 20-7-1997, to contend that without the actual weighment of the goods, no shorta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not correctly arrived at by the officers. He never in that letter even asked for the re-verification of the stock by actual weighment Therefore, the plea of the respondents in the reply to the show cause notice that proper procedure was not adopted by the officers and that the shortage was based on presumptions and assumptions, can safely be said to be afterthought, especially when their Director Shri Madanlal Kataria, had never retracted his statement made by him on the very day of checking vide which he expressed his satisfaction over the mode for physical verification of the goods adopted by the officers. He rather admitted the shortage of the finished goods and inputs and undertook to pay the duty. If he had any doubt in his mind a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound short as per the admission of their Director, the respondents are liable to pay the duty in respect of the same. Similarly, they are also liable to pay back the credit taken by them on the inputs which were found short in their factory. The ratio of the law laid down in the above referred cases, cited by the respondents in their cross-objections is not attracted to the facts of the present case. In the case of Kirloskar Brothers, supra, the appellants therein insisted on the weighment of the entire lot at the time of subsequent search and also disputed the procedure adopted by the Department. It was under these circumstances, the alleged admission of their representative was held to be not sufficient for proving the shortage of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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