9911796707
TMI Blog2011 (2) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the cevnat credit had been taken without the permission of the Asstt. Commissioner - Therefore, the Commissioner (Appeals) s order permitting the cenvat credit on the basis of the photocopy of the bill of entry is not correct and is liable to be set aside. Shortage of 10.370 M.T. of M.S. Ingots - find that the weighment had been determined in presence of the respondent s representative - For determining the weightment of the 10 ingots had been done and the average weight per ingot had been determined and thereafter the total weight had been determined by multiplying the total number of ingots with the average weight - While determining the weight in this manner, there will be only marginal difference between the weight recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence that the original copy had been lost in transit. The respondent reversed the cenvat credit. 1.2 Subsequently after issue of the show cause notice, the Asstt. Commissioner vide order-in-original dated 27.12.2006 confirmed the duty demand on the goods found short and also the cenvat credit demand along with interest and imposed penalty of Rs.41,461/- under Section 11 AC and another penalty of Rs.10,000/- each under Rule 25 of the Central Excise Rules, 2002 and Rule 15 of the Cenvat Credit Rules, 2004. The amount already deposited was appropriated. On appeal to the Commissioner (Appeals), the Commissioner (Appeals) vide order in appeal dated 28.2.2008 set aside the Assistant Commissioner s order. It is against this order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no evidence of clandestine removal of the goods without payment of duty is not correct. In view of this, he pleaded that the impugned order setting aside the order-in-original passed by the Commissioner is not correct. 4. In the memorandum of cross objection filed by the respondent, they disputed the fact of shortage of goods on the ground that the method of determination of weight of the ingots was not correct, that the weight should have been determined by actual weightment of the entire stock and not on average weight per ingot, that the cenvat credit of additional customs duty had been rightly taken on the basis of photocopy of the triplicate bill of entry and that as such, there is no infirmity in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his manner, there will be only marginal difference between the weight recorded in the RG-I register and the weight determined but the difference cannot be to the tune of 10 M.T. The respondent have not given any satisfactory explanation for the shortage. In view of this, I am of the view that the duty in respect of the shortage has been rightly demanded and the penalty had been rightly imposed and as such, the Commissioner (Appeals) s order setting aside the order of the original adjudicating authority s order on this point is not correct and is liable to be set aside. 7. In view of the above discussion, the impugned order is set aside and the order-in-original passed by the Asstt. Commissioner is restored. The Revenue s appeal is accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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