9911796707
TMI Blog1998 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... dents. [Order]. This appeal arises from the Order-in-Appeal dated 25-3-1997 by which the Commissioner (Appeals) has confirmed Central Excise duty of Rs. 32,725/- on the allegation that on perusal of RT-7(C) of the appellants factory for 3/94 it was found that 1500 bags of Brown Sugar of 1989-90 season was processed for which only 1115 qtls of sugar was recovered resulting in loss of 385 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Assistant Commissioner did not flow from the allegations made in the show cause notice and therefore, the order was defective. On this point, the Commissioner has agreed but however, he has observed that in the similar cases, the chemical examiner observed that 12.5% loss is very high and hence the present loss of 29% in the instant case is to be treated only on account of negligence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned DR defending the order by pointing out that the figure of loss has been calculated from the register itself and on the basis of average production, the storage loss has been determined. The learned DR also pointed out that in terms of Section 35B(a) the aspect pertaining to the case of loss during the course of processing of goods in a warehouse or in storage, whether in a factory or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dutiability and excisability of brown sugar being involved, hence the matter is required to be determined by the Tribunal. 8. On the other points raised by the learned Counsel, there is strong merits for its consideration. The show cause notice does not rely upon the chemical examiner s report on the basis of which they have determined the loss in storage or reprocessing. In the absence of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the reference to a similar case, wherein the chemical examiner had observed that 12.5% loss is itself very high. The learned Commissioner has accepted the appellants plea that the order is defective inasmuch as the report had not been relied upon in the show cause notice. Having held so, yet he proceeded to confirm the order on the basis of observation of chemical examiner. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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