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TMI Blog2010 (6) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... rods separately - department to show that if assessee has not supplied the wires someone else supplied the raw material - no receipt of the raw materials has been proved and for the conclusion that finished goods manufactured out of these raw materials, no evidence is available on record - demand for duty cannot be sustained - E/1037-1038/2009 - A/988 & 987/2010-WZB/AHD - Dated:- 25-6-2010 - Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Willington Christian, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order]. During the preventive checks of appellant s unit, officers found excess quantity of 13353 Kgs. of Copper Rods and shortage of 8793.79 Kgs. of copper material for product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther on the shortage found during the visit in June 2002, no show cause notice was issued earlier and for this, show cause notice was issued in 2007 to demand duty on the ground that the finished goods which were found short were cleared illicitly. In the second proceedings demand for duty on the copper wires that could have been manufactured from excess copper rods as well as shortage found has been demanded and equal amount of penalty has also been imposed. 3. First of all, learned advocate submitted that the second show cause notice issued in respect of copper wires manufactured out of 13353 Kgs. copper rods is hit by res judicata. He relied upon following three decisions in support of his contention :- (i) 2005 (70) RLT 823 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess itself has been rejected by both the lower authorities. This is in view of the fact that copper rods are not notified goods under Section 123 of Customs Act and mere finding of slips on the bundles is not enough to show that the goods were illicitly imported. Once the quantity found is in excess and adjudicating proceedings started on the ground that the quantity found is in excess and once this fails, the department cannot start investigation on a new ground and issue another show cause notice after five years. In any case, it was also submitted that none of the statement is inculpatory and no evidence has been adduced by the department to show that appellants had received copper rods separately. Even if it is admitted that the copper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Panchas has been produced in addition, Shri R.R. Kothari, partner had admitted the shortage and also had admitted that goods had been illicitly removed. As regards the observations of the learned advocate that the exact nature of material found short had not been indicated, it is seen in the Panchnama itself that finished goods have not been classified in different categories and no objection was raised by the Partner at that time or immediately thereafter. In these circumstances and in view of the fact that Panchnama has not been challenged and Partner has clearly admitted the shortage, the duty demand in respect of shortage found has to be sustained. 5. As regards penalty, penalty has been imposed under Section 11AC, equal to duty dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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