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TMI Blog2013 (4) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ng credit without actual receipt of raw material. Tribunal note that no such evidence has been adduced by Revenue. No co-relation of quantity of raw materials consumed and quantity of final products manufactured over a reasonable period is examined. In the absence of such corresponding evidence or any evidence of clandestine removal and the nature of commodity involved, tribunal inclined to give the benefit of doubt to the appellant and hold that the demand is not sustainable. Thus the appeal of the assessee is allowed. - E/1043 and E/1373/2010 - 847-848/2012-SM(BR)(PB) - Dated:- 14-6-2012 - Shri Mathew John, J. REPRESENTED BY : Shri Alok Arora, Advocate, for the Assessee. Smt. R. Jadgev, DR, for the Department. [Order]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upheld the rest of the order. The assessee is in appeal against the order of Commissioner (Appeals) and Revenue is also in appeal against the order dropping the penalty of Rs. 11,382/-. 4. The Counsel for the assessee submits that on the date of visit on 11-9-2007, during surprise check conducted, there was 163.072 MT of ingots lying in the factory of the assessee. During stock taking, actual weighment of the entire material was not done because such exercise was not possible due to the very size of the inventory. Therefore, samples were weighed and thereafter, the number of ingots lying in the factory were counted. By such a method of weight estimation, the shortage of 3.733 MTs was estimated. This difference is very marginal because i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- cannot be held against them because stock taking actually disrupts their work and when the representatives are detained late into night, they may admit such position even if not true. In this type of commodity, it is not reasonable to confirm the duty demand for such small levels of shortage noticed in stock taking. In the facts and circumstances of the case, I am of the view that duty demand and penalty imposed in respect of the quantity of finished product found short is not maintainable. 7. The next issue to be decided is the case of shortage of duty paid scrap which is a raw material. It is the submission of the appellant that such raw materials were stored in heaps in the factory and as per the record, 892 MTs should have been the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as received without actual receipt of raw material. According to her, once the shortage is accepted, duty corresponding to credit should be reversed. 10. I have considered arguments of both sides in this matter and there is merit in the arguments of both sides. There is a genuine difficulty in ascertaining the actual stock and also in correctly ascertaining the weight of raw material that was used in manufacture of goods over a period of time. It is also possible that the shortage is due to the fact that the appellant has been taking credit without actual receipt of raw material. I note that no such evidence has been adduced by Revenue. No co-relation of quantity of raw materials consumed and quantity of final products manufactured over a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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