9911796707
TMI Blog1997 (3) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... nst this order, the appellants filed the present appeal. 2. The facts of the case are that on 1-5-1991 the Central Excise Officers visited the factory of the appellants. On physical verification of the stock of the molasses for the sugar season in the year 1990-91, the Central Excise Officers found an excess of 4492.30 Qtls. of molasses. This excess was determined on the basis of dip reading excluding foam. Since this excess was not specifically explained to the Central Excise Officers a show cause notice was issued to the appellants asking them to explain as to why the excess quantity should not be confiscated and why a penalty should not be imposed on them. 3. In reply to the show cause notice the appellants submitted that determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f calculating the quantity of molasses on the basis of dip reading. The learned Counsel submits that the method of dip reading suffers from a number of defects in as much as Brix of molasses changes and varies on account of factors over which the appellants had no control. He submits that the method of dip reading for calculating the quantity of molasses in the tanks is found to be incorrect. He submits that the Commissioner issued instructions to be followed while calculating the quantity of molasses. The learned Counsel submits that the method was by finding the volume of the molasses and multiplied by specific gravity/density at the time when stock was physically verified. He submits that in view of these instructions of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Excise Commissioner but those instructions are dated 27-12-1991 whereas physical verification on the basis of dip reading and calibration chart was done on 1-5-1991. He submits that on the date of physical verification of molasses it was by adopting dip reading method; that these instructions were not available therefore he submits they cannot be taken for determination the weight in the instant case. The ld. JDR reiterates the findings of the lower authorities and submits that the molasses found in excess have rightly been confiscated and that because of this infringement of non-recording the correct weight a personal penalty is justifiable. 6. Heard the submissions of both sides. The first issue for determination in this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 69] cited and relied upon by the learned Counsel I find that one of the contention was that the appellants were not given any concession on account of froth/foam among other things. 7. In the instant case I find that allowance for foam has been given to the appellants. I note that during the month of summer froth/foam is a natural phenomena with molasses. I agree with the contention that the CO2 gas in the process of fermentation is generated. Fermentation is a natural phenomena which causes changes in the Brix of molasses. CO2 in the process of escape or emerging from molasses creates froth/foam. In the instant case the allowance has been given therefore the ratio of the judgment cited by the appellants is not applicable to the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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