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TMI Blog2013 (8) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... ma and therefore it is wrong to say that shortage is based on eye estimation. Moreover Shri Narendra Singh Factory Manager had admitted the shortage in the pipes as in his the statement - Shortage of the goods in the factory which is no explained by the factory manager - Concluded that goods were removed without payment of Central Excise duty – Decided against the Assessee. - E/3098/2010 EX-SM - - - Dated:- 21-5-2013 - Shri Sahab Singh, J. For the Appellant: Ms. Tuhina, Advocate For the Respondent: Mr. A. Jain, AR JUDGEMENT Per Sahab Singh; This appeal is filed by M/s Swastik Pipes Ltd. (hereinafter referred to as appellants) against the Order in Appeal No. 124-CE/LKO/2010 dated 29.06.2010 passed by Commissioner, Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage in fact but not explaining the shortage by the authorized signatory cannot be treated as admission of the duty liability. She further points that the said storage has been noticed by Central Excise officers possibly on account of eye estimation Shortage was only about 1.35% of the total stocks of pipes and about 0.4% of total material lying in the factory. Such a negligible shortages are only due to inaccurate eye estimation. She relied upon the decision of Hon ble High Court in case of Roll Tubes Ltd. reported in 2011 (265) ELT 414 and in case of Hans Metals (P) Ltd. reported in 2006 (119) ELT 521 to support her case. 4. Ld. AR appearing for the Revenue submits that the Show Cause Notice was issued to the appellant based on physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot find any infirmity in the findings of the Commissioner (Appeal) and I uphold the same. 7. Appellant relied upon the decision in case of Roll Rubes Ltd. and Hans Metals (P) Ltd. Firstly in the clandestine removal cases facts of each case are different and the decisions in clandestine removal cases are not applicable as facts are different in each case. Moreover both the decisions are based on demanding duty on the basis of eye estimation whereas in the present case it is noticed that demand is raised on physical verification of goods which are mentioned clearly in numbers. I find that these decisions are not applicable in the preset case. 8. In view of the fact that since duty were was before the Show Cause Notice and 25 % of the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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