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TMI Blog2013 (8) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... ken on the inputs – Held that:- These shortages had not been detected by comparing their stock available in the factory at the time of officer’s visit on 12-9-1997 with the stock as reflected in RG-23A Pt. I register - In respect of BP sheets Investigating officers added the quantity issued for manufacturing during period from 1-9-1997 to 12-9-1997 to the stock of BP sheets as reflected in RG-23A Pt. I register and, thereafter, compared this total with the stock of BP sheets lying in store room as well as in the factory in various stages of processing - The shortage in respect of CRGO sheets has also been determined in the same manner - In ascertaining the stock of cenvated inputs in this manner the officers have not taken into account certain quantity which was available in the factory and certain quantity which has been used in the manufacture of finished goods - Department has not been able to prove that there was actual shortage of BP sheets and CRGO sheets as alleged in the show cause notice – Decided against the Revenue. Clandestine removal of 14.124 M.T. of wires and strips in respect of which Cenvat credit had been taken – Held that:- Allegation is based on the presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectrical steel sheet involving Cenvat credit of Rs. 1,13,631/-. 1.2 The shortage of BP sheets was determined by taking into account the stock, as per the stock of this item in RG-23A Pt.-I register as on 12-9-1997 and total quantity of this item issued during the period from 1-9-1997 to 12-9-1997 for manufacturing of transformers and thereafter comparing the total quantity with the goods available in the stock and in the factory in various stages of processing. The shortage of CRGO sheets was also determined in a similar manner. The respondent, however, at that time accepted the shortage and debited the Cenvat credit involved on the alleged shortage of BP sheets and CRGO sheets. 1.3 The officers, thereafter, examined the records of the respondent. They ascertained the quantity of another input - wire and strips received during the period from 1-4-1993 to 12-9-1997. They also determined the consumption of this item on the basis of certain norms called Guaranteed Technical Particular specifications (GTP specifications). After comparing the total quantity of wire and strips received during 1-4-1993 to 12-9-1997 period with the consumption of this item as ascertained on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortage of the transformers, as the 10 transformers alleged to be found short were available in the factory, as the same had been put in oven for reovening and similarly there is no shortage of other cenvated inputs, but this plea of the respondent was not accepted by Joint Commissioner. 1.7 The respondent filed appeal before the Commissioner (Appeals) against the Joint Commissioner order and the Commissioner (Appeals) vide order-in-appeal dated 16-3-2004 set aside the order-in-original and allowed the appeal. 1.8 It is against this order of the Commissioner (Appeals) that this appeal had been filed by the Revenue. The respondent have filed a cross objection in respect of the Revenue s appeal. 2. Heard both the sides. 2.1 Mrs. Monica Batra, the learned Departmental Representative, assailed the impugned order by reiterating the grounds of appeal in the Revenue s appeal and pleaded that at the time of officer s visit to the factory when shortage of 10 transformers vis- -vis balance in RG-1 was detected, the respondent had admitted that shortage, that similarly they had also accepted the shortage in respect of inputs namely CRGO sheets and BP sheets, that in view of this, their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in the transformers which had been lost in fire accident in 1994 and 1995, that there is no finding in the order-in-original that the respondent are guilty of fraud or wilful suppression of relevant information with intent to evade the payment of duty and, hence, the imposition of penalty under Section 11AC of Central Excise Act/Rule 57-I of Central Excise Rules, 1944 is not called for, and that in view of this, there is no infirmity in the impugned order. 3. We have carefully considered the submissions from both the sides and perused the records. 4. Coming first to the allegation of clandestine removal of 10 transformers and demand of duty in respect of the same, we find that the basis of this allegation is that according to the department, at the time of officer s visit to the factory on 12-9-1997, when the stock of finished goods was checked, 10 transformers of 100 KVA were found short vis- -vis the balance of RG-1 register. However, on going through the Panchnama, we find that in the Panchnama itself it has been recorded that when Shri Dubey of the respondent company was asked about the 10 missing transformers, he explained that the same have been put in the oven, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val of this item without payment of duty. The department s allegation is simply based on the total quantity of wire and strips purchased by the respondent during period from 1-4-1993 to 12-9-1997 and the total quantity supposed to have been consumed on the basis of GTP specifications, while the respondent s plea is the consumption is not always according to the GTP specifications and can be higher also. In view of this, we find no infirmity in the order of the Commissioner (Appeals) dropping the Cenvat credit demand in respect of alleged clandestine removal of 14.124 M.T. of cenvated wires and strips during the period from 1-4-1993 to 12-9-1997. 7. Coming to the last allegation regarding illicit removal without payment of duty of 9 M.T. of cenvated wires and strips which is shown to have been destroyed in fire in 1994 and 1995, we find that the appellant s claim is that this large quantity of wires and strips was contained in the newly made as well as repaired transformers which had been totally destroyed in fire accidents in the factory in 1994 and 1995. However, it is an admitted fact that neither the respondent had reported about any fire accident during this period nor any cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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