KAMDHENU ISPAT LTD. Vs. COMMISSIONER OF C. EX. & S.T.
LAWS(CE)-2015-6-45
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 09,2015

Kamdhenu Ispat Ltd. Appellant
VERSUS
Commissioner of C. Ex. And S.T. Respondents


Referred Judgements :-

J.C. ROLLING MILLS PVT. LTD. V/S. CCE KANPUR [REFERRED TO]
ARYA FIBERS PVT. LTD. V/S. C.C.E. [REFERRED TO]


JUDGEMENT

ASHOK JINDAL, J. - (1.)The appellant is in appeal against the impugned order wherein duty has been demanded from the appellant on the allegation that appellant has cleared the goods clandestinely. The facts of the case are that appellant is a manufacturer of CTD and TMT bars and Ingots. On 15 -7 -2010 at about 7 pm an investigation was conducted at the premises of the appellant and stock taking was done on the basis of average taken up by weighing 5 bundles of each size and it was concluded that as per records the quantity shown is 1092.370 MT. Whereas, on the basis of average weight taken it was found that 911.47 MT. Therefore, there is a shortage of 180.899 MT which the appellant could not explain satisfactorily. Therefore, it was alleged that the short found finished goods have been cleared by the appellant clandestinely. On the basis of this investigation the show cause notice was issued to demand duty on the shortages along with interest and proposal of penalty was also made. Adjudication took place. Demand on account of clandestine removal of goods was confirmed along with interest and equivalent amount of penalty was also imposed by both the lower authorities. Aggrieved from the said order appellant is before me.
(2.)The Ld. Counsel for the appellant appeared before me and submits that weighment has been done on average basis which is not correct. Moreover, in reply to the show cause notice on the basis of weighment done by the investigation team they file the chart before the Adjudicating Authority which works out to a shortage of near about 3.3 MT which is a meager quantity. Therefore, there were no shortage of final product in their factory as weighment was done on average basis. He further submits that allegation is made against the appellant for clandestine removal of the goods. This allegation is only on the basis of assumption and presumption without any cogent evidence in support of the said allegation. As it was not ascertained where goods have gone, how the goods have been transported, whether goods have passed through any checkpost or not? Without doing this exercise the demand has been confirmed against the appellant which is not sustainable. In these terms he prayed that impugned order be set aside.
(3.)On the other hand Ld. AR submits that the shortage works out to near about 16% in this case and weighment has been done on physical verification of 5 bundle of each size and thereafter average has been taken which is multiplied by number of bundles and weight has been taken. Therefore, weighment has been done on the best method available at the relevant time and same has not been agitated by the appellant. Therefore, the finished goods were found short and these shortages could not be explained by the appellant satisfactorily. In these circumstances, demand is rightly confirmed. To support his contention he relied on the decision in the case of J.C. Rolling Mills Pvt. Ltd. v/s. CCE Kanpur - : 2012 (276) E.L.T. 254 (Tri. -Del.).
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