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TMI Blog2014 (6) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... Security officer has maintained a register of clearance but it is a internal stock register of the goods. The goods were cleared finally from the factory gate on the basis of the gate pass and the clearance shown in gate pass are tallied with the invoices. As the respondent maintain two security checks the final security check deals with the clearance which are tallied with the actual clearance in the respondent stock register which tallies with each other and no evidence has been produced by the Revenue that these documents are not correct. Therefore, the allegation of clandestine removal is not sustainable. - Decided against Revenue. - E/2178/2004-Mum and Cross Objection No. E/CO/505/2004 - Final Order Nos. A/167-168/2013-WZB/C-IV(SMB) - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 3-2-1999 was issued. The show cause notice was adjudicated and on the basis of allegation made in the show cause notice, demand of Central Excise duty along with interest was confirmed against the respondent and equivalent amount of penalty under Section 11AC of the Act was also imposed. The said order was challenged by the respondent before the Commissioner (Appeals) who set aside the adjudication order. Aggrieved by the same, the Revenue is in appeal. 3. Shri V.R. Kulkarni, Dy. Commissioner (A.R.) appearing for the Revenue submitted that at the time of investigation on 7-12-1996, the Security Officer was enquired and he made a statement and produced a register meant for clearance of the goods. In the statement, it is an admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been replaced by the finished goods has not taken place as the same has been alleged on the ground that the rejected goods have not been replaced within six months. The rejected goods have been entered in the Annexure 5 of Rule 173H of Central Excise Rules, 1944. With regard to the shortage of waste and scrap it is submitted that the waste and scrap were packed in gunny bags and there was variation in number of gunny bags were found at the time of inspection. With regard to the shortage of waste and scrap it is explained that during the course of loading/unloading of the waste and scrap which is packed in gunny bags some of the gunny bags were torn off which were replaced in other gunny bags. Therefore there is a difference in number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of clandestine removal is not sustainable. As recorded by the Commissioner (Appeals) in paragraphs 8 and 9 of the impugned order which is reproduced hereinunder :- 8. I find that apart from the entries in the Security Loading Register on two specific dates there has been no other independent corroborative evidence which shows that the so called excess quantity of goods had been actually removed from the appellants factory. The stock taking of the finished goods as well as raw material undertaken by the visiting preventive officers did not point out any variations in the stock physically available in the appellants factory viz-a-viz their statutory records. Had there been excess removal of 71 boxes plus 14 reels against the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said fact has not been controverted by the Revenue. Therefore, the allegation of replacement of rejected goods, when no query from the buyers has been made whether they have received finished goods against the rejected goods or not, the allegation that the rejected goods have been replaced by finished goods is not sustainable. 9. With regard to the differences in the waste and scrap it is clarified and found that quantity of waste and scrap is tallying with each other and the only difference is no. of gunny bags, therefore, the allegation is not sustainable as the duty is to be demanded on the basis of quantity of clearance and not on the basis of packets. Therefore, the said allegation against the respondent is not sustainable. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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