9911796707
TMI Blog1987 (12) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rs. 60,160.12 (later revised to Rs. 50,932.38) issued to the applicants vide show cause Notice dated 22-2-1983 was time barred -under Section 11A of the Central Excises and Salt Act, 1944. 2. Facts leading to the present application and more vividly described in Order No. A-385/87-NRB, dated 24-6-1987 are as follows ;- 2. Factual Backdrops : During the annual stock taking for the year 1981-82 of the stocks of woollen fabrics of the appellants Company, the stock taking officer found woollen fabrics valued at Rs. 3,43,296.14 short from physical stock as detailed out in the show cause notice. Thus on a reasonable belief that the appellants removed the said woollen fabrics without proper accountal in their statutory records, without de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the fresh demand varietywise after allowing the shortages upto 0.3% in each variety and intimate the appellants to deposit the same. The Additional Collector also found the appellants guilty of non-maintenance of the Central Excise Records properly and therefore imposed on them a personal penalty of Rs. 2,000/- under Rule 226 of the Central Excise Rules, 1944. Regarding the contention that the demand was time barred, the Additional Collector held that the same was not time barred. 3. During the course of hearing of the main appeal on merits it was contended by the Counsel for the appellant that the demand was time barred as it was issued after 6 months. This contention was rejected in these terms : 4. At the outset Shri M.A. Rang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the completion of the stock taking on 20-8-1982 the final stock taking report was typed by the assessee and submitted to the Superintendent on 31-8-1982/1-9-1982. After giving our due consideration to the arguments so advanced we find that the Additional Collector was right in holding that the demand was not time barred. Since it is admitted to the appellants that the hand-written chart showing the shortages prepared by the assessee themselves was not signed by the Proper Officer and that after typing of the said hand-written chart by the assessee which was completed on 31-8-1982 it was presented to the Superintendent on 1-9-1982 and thereupon the Superintendent after satisfying himself signed the said chart on 1-9-1982, it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stock of excisable goods remaining in a factory, warehouse or store-room licensed or approved for the shortage of such goods shall be weighed, measured, counted or otherwise ascertained in the presence of the proper officer; and if the quantity so ascertained is less than the quantity of which out to be found in such premises (after taking into account receipts and deliveries, and making such allowance for waste by evaporation, or other natural causes, as the proper officer may consider reasonable, and as may be in accordance with any instructions issued by the Central Board of Excise and Customs) the owner of such goods, or if the premises be a public warehouse, the keeper thereof, shall, unless the deficiency be accounted for to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her natural causes as he may consider reasonable and in accordance with any instructions issued by the Central Board of Excise and Customs. And it is only after the annual stock taking is done by the manufacturer and the shortage is noticed that the proper officer would ascertain the actual deficiency after taking into account the receipts and deliveries and making such allowance as stated above. Thus the deficiency for the purposes of Rule 223A is ascertained not when the shortage is found at the time of physical stock taking but it is ascertained only when on detection of shortage on physical verification the proper officer ascertains if after taking into account the receipts and deliveries, and making such allowance for waste by evaporat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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