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TMI Blog2010 (1) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods were clandestinely removed. Case involving finding of fact and substantial question of law not arises. - 20 of 2009 - - - Dated:- 13-1-2010 - K.A. Puj and Rajesh H. Shukla, JJ. Shri Kalpesh N. Shastri, Standing Counsel, for the Appellant. None, for the Respondent. [Judgment per : K.A. Puj, J. (Oral)]. - The Commissioner of Central Excise, Ahmedabad-II, Ahmedabad, has filed this Tax Appeal under Sec. 35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law for determination and consideration by this Court : "(1) Whether the Tribunal committed error in not considering the fact that there is voluntary confessional statement of the director of the company about clandesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y mis-declaration. Once it is settled that genuine processing losses will occur, then demand for that cannot be raised. It is only if it is established that losses were unreasonable or mis-declared then demand can be raised." The Commissioner has further observed that there is no assertion that losses are unreasonable. The demand pertains to period 1988-89 to 1991-92 i.e. four years. The show-cause notice issued by the adjudicating authority is based on statutory records and only on that basis he arrived at a difference between quantity sent and quantity received back. 5. The Commissioner (Appeals) was however impressed by the explanation tendered before him to the effect that shortage of 4% on receipt of goods is nominal and natural due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duncan. Agro Industries Ltd. - 2000 (120) E.L.T. 280 (S.C.) and Commissioner of Central Excise, Madras. v. Systems Components Pvt. Ltd., 2004 (165) E.L.T. 136 (S.C.) and also in the case of Commissioner of Customs (Preventive) v. Vijay Dasharath Patel, 2007 (210) E.L.T. 321 (S.C.) = 48(3) GLR 2672. However, these decisions are not applicable to the facts of the present case and the ratio laid down therein cannot be applied to the case on hands. Here, there is a concurrent finding of fact by both the authorities and there is no finding by the authorities to the effect that the loss occurred was unreasonable and both the authorities have also verified that the loss claimed by the appellant was based on the records and it would not amount t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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