9911796707
TMI Blog2000 (6) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... ied over since long and cannot explain shortage of 3723.55 kgs. Terry Viscose Yarn valued at Rs. 558532.50, involving Excise duty of Rs. 37235.00 in all. Shri R.B. Shah, Managing Director confirmed it in his statement dated 17-12-91 as recorded in the Panchanama dated 26-11-91, and also endorsed to statement of Excise Clerk-cum-Time Keeper B.J. Patel, verification of RG-1 Register revealed that on 1-4-90 opening stock was 9794.350 and 2591.900 kgs. of Terry Viscose Yarn was cleared during the period 1-4-90 to 4-6-90 under various gate passes. Stock of 7202.450 kgs. was carried over since then till March 1991. Pre-budget day declaration on 23-7-91 also showed a stock of 7202.450 kgs. of factory, duly verified by the incharge Inspector of the factory of the Pre-budget day/budget day. Annual Stock taking report of the said factory of Excisable goods by central excise officers conducted on 20-12-90 and 1-10-91 also revealed the said stock of 7202.450 kgs. of Terry Viscose Yarn. B.J. Patel, Excise Clerk-cum-Time Keeper expressly confirmed the shortage of 3723.550 kgs. of Terry Viscose Yarn with reference to Central Excise statutory records in his statement dated 17-11-92. Appellant cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that difference in RG 1 register entry of 7202.450 kgs and actual stock of 3478.900 kgs. of Terry Viscose Yarn is on account of loss by way of moisture evaporation and short fall is carried over from 1986 time to time, which is not at all considered in the impugned order. RG1 register figure includes the aforesaid shortage which had taken place in the past. It is not appreciated. As per Technical Literature Terry Viscose Yarn has a process loss of moisture content to the extent of 15% to 18%, which is accepted in the order of Asst. Collector for 1988. Producted Declaration dated 18-3-90 and 23-7-91 of the appellant is on the basis of earlier short fall. Solely relying the record existing on 18-3-90 or 30-11-90 or 27-7-91 is not correct, since shortage occurred was being carried forward. There is no wilful suppression or mis-statement by appellant show cause notice does not state any thing about it with particulars. There is no positive act of appellant attracting extended period. The defence of the appellant to show cause notice dated 20-4-93, which states on page 4, regarding the charge that "appellant appears to have removed illicitly 3723.550 kgs. of Terry Viscose Yarn without i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that too after one moisture gain. When an attempt was made to gain Moisture the yarn got twisted. Verification includes carry forward of shortage. On limitation, it is challenged that show cause notice was issued 18 months after the period, alleging fraud, wilful mis-statement and suppression. The department knew the above facts from 1988. Question of suppression does not arise. There is no such thing. Section 11A (i) proviso is only invoked to get the benefit. Show cause notice is barred by time. 5. As per the discussion and finding in Pages 4 and 5 of the impugned order, Collector Central Excise II, Ahmedabad has considered the point whether there was illicit removal of 3723.550 kgs. of Terry Viscose Yarn, without payment of duty. He has held that no evidence is produced by appellant in support of the claim that such set off of moisture loss is permitted by the Jurisdictional Assistant Collector in 1988. With reference to the manufacture loss in 1986 was not in fact deleted in records. If allowed, they would have been noted in the statutory records and balance set off to them to that extent. No technical literature was produced regarding moisture loss to the extent of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clearance also the required percentage of moisture is maintained by treating the yarn with moisture by steam process. Thus weight of yarn with moisture as recorded in RG 1 is cleared on payment of duty without claiming any remission of duty on account of moisture content of the yarn evoporated during shortage. It is therefore clear that the duty demanded in S.C.N. on the quantity of C.S. Yarn found short by P.I. officers was even otherwise payable by the appellant and would have certainly be paid at the time of clearance. It is also observed in the end that the appellant has adopted incorrect procedure of maintaining statutory records. The quantity recorded in RG 1 must tally with the actual stock under Rule R 226 of Central Excise Rules. Any variation between is liable to penal action. Shortage of 3380.500 kgs. C.S. Yarn detected is governed by said rule. Explanation regarding moisture content of the yarn and its evaporation due to storage tendered is not supported by statutory records. Ultimately, appellant was asked to pay duty 31669.350 kgs. of C.S. Yarn at the time of clearance, already recorded on RG 1 register, including the quantity of shortage detected, at appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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