2006 (6) TMI 439 - AT - Central Excise

Summary

Issues:
1. Appeal against the order of the Commissioner (Appeals) by the Revenue.
2. Alleged clandestine removal and shortage of Iron and Steel Flats.
3. Contention regarding weighment of goods and absence of shortage.
4. Finding of the Commissioner (Appeals) and subsequent appeal before CESTAT.
5. Examination of documentary evidence and driver's statement.
6. Acceptance of the assessee's explanation and rejection of the revenue's appeal.

Analysis:
The appeal before the Appellate Tribunal CESTAT, New Delhi involved the Revenue challenging the order of the Commissioner (Appeals) concerning the alleged clandestine removal of 16 tons of Iron and Steel Flats and a shortage of 14 tons of Flats in the respondent's factory. The Revenue contended that the Commissioner's order was incorrect on facts and not in line with the Tribunal's remand order. The assessee's defense was that the goods loaded on a truck were sent for weighment and not clandestinely removed, awaiting the issuance of a sale invoice for duty payment. It was also argued that there was no actual shortage, attributing discrepancies to a defective weighing machine.

The Commissioner (Appeals) had allowed the party's appeal, prompting the Revenue to appeal to CESTAT, which remanded the matter back to the Commissioner for fresh consideration. The Commissioner upheld the earlier order, emphasizing that the goods were not clandestinely removed as proper permissions and procedures were followed, and invoices were to be prepared only after accurate weighment. The Commissioner also noted the driver's statement corroborating the legitimate weighment process. Regarding the alleged shortage, the Commissioner applied the principle of benefit of doubt, citing a precedent where shortage was not established due to estimation without actual weighment.

Upon reviewing the evidence, including weighment slips and the driver's statement, it was evident that the consignment had been legitimately taken for weighment, supporting the assessee's explanation. The Tribunal found merit in the assessee's defense regarding excess stock and upheld the explanation, as the goods could not have been accurately weighed. Ultimately, the Tribunal concluded that there was no error in the Commissioner's order, rejecting the Revenue's appeal for lack of merit.

In summary, the Tribunal's decision affirmed the legitimacy of the weighment process, dismissed the Revenue's claims of clandestine removal and shortage, and upheld the Commissioner's order in favor of the assessee, emphasizing the importance of documentary evidence and adherence to statutory procedures in excise matters.