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TMI Blog2012 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 195/225/2010-RA-CX - 1006/2011-CX - Dated:- 9-8-2011 - Shri D.P. Singh, J. REPRESENTED BY : Shri Ganesh Bapu TR, Advocate, for the Assessee. Shri Ajit Savant, Superintendent, Central Excise Division, for the Department. [Order]. This revision application is filed by M/s. Bharat Petroleum Corporation Ltd., Wadilube Installation, Mallet Road, Mumbai-400009 against the order-in-appeal No. SB(104)/MI/09 dated 13-11-2009 passed by Commissioner of Central Excise (Appeals), Mumbai Zone-I with respect to order-in-original No. A/02/08-09 dated 28-11-2008 passed by Assistant Commissioner of Central Excise, Division-A, Mumbai-I. 2. Brief facts of the case are that the applicants are holding Central Excise Registration No. AAACB2902MXM050 for manufacture of excisable goods viz. lubricants falling under Chapter 27 34 of CET Act, 1985. During the annual stock checking of excisable goods carried out by the applicants, a shortage of 10562.774 Ltrs of various grades of lubricating oils manufactured by them and packed in unit containers falling under CETH 2710.19.80 was found. The applicants had declared these shortages in their monthly ER-1 returns for the month of Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of packed goods already entered in their daily stock register which is a statutory record. As per Section 3 of the Central Excise Act, 1944, excise duty shall be levied on all excisable goods manufactured in India and as per Rule 10 of the Central Excise Rules, 2002, the applicants are required to maintain a daily stock record indicating the description and quantity of goods manufactured by him. Thus, as per above referred provisions, it is mandatory that every unit quantity of excisable goods manufactured in a factory is entered in a daily stock register and is chargeable to excise duty at the applicable rates at the time of removal as per Rule 4 read with Rule 8 of the Central Excise Rules, 2002. There are plethora of case laws which have stressed on the finality of the manufactured excisable goods which have been accounted for in the RGI or statutory daily stock register. 2.5 In the instant case, the shortages or even excess have been found in packed goods, entered in their RGI, in different unit packings and the brand grades/packings in which the excesses have been found. Further, the assessable value which is based on the packing quantities of each grades varies for packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 requantified the losses considering condonable limit and adjusting the losses against the gain. 4.2 In the instant case it is not the case of the department that the disputed goods have been removed or cleared without the payment of applicable duty of excise but the demand has been confirmed on the quantities found short at the time of stock taking. Therefore the provisions of Section 11A cannot be invoked in the present case. Thus the impugned order-in-appeal should be set aside on this ground itself. 4.3 In the impugned order the Appellate Commissioner has also stated that Board s Circular No. 11-A/6/70/CX.4, dated 30-4-1971 allows for condonation of 0.1% for storage loss on lubricating oil base stock whereas in the present case the loss is with respect to the lubricating oils manufactured and packed in unit containers. Therefore the rationale of the aforesaid Circular cannot be applied to the instant case. The Appellate Commissioner has also set aside the reliance placed by the applicants on the decision of CEGAT, East Regional Bench in case of Indian Oil Corporation Limited v. Collector of Central Excise, Calcutta as reported in 1984 (15) E.L.T. 479 (Tribunal), wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of 0.1% of the (opening balance + quantity manufactured + quantity received from other sources) on the net shortages observed i.e. after adjusting the quantities observed in excess with the quantities observed in short. 5. Personal hearing was scheduled in this case on 10-5-2011, 13-6-2011 and 23-6-2011. Shri Ganesh Bapu TR, Advocate attended hearing on 23-6-2011 on behalf of the applicant who reiterated the grounds of revision application. Shri Ajit Savant, Supdt. Central Excise Division-A Mumbai-I appeared for hearing on 13-6-2011 on behalf of the respondent department and pleaded the impugned order-in-appeal being legal and proper may be upheld. 6. Government has carefully gone through the relevant case records, written/oral submissions and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government observes that duty demand of Rs. 1,20,954/- was confirmed by adjudicating authority in respect of shortage of 10562.774 litres of various grades of lubricating oils manufacture and packed in unit containers falling under CETH 2710.19. In appeal, Commissioner (Appeals) upheld the said order-in-original. Now applicant is contesting the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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