9911796707
TMI Blog2015 (3) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... AT), South Regional Bench, Chennai was admitted by this Court on the following substantial questions of law: "1. Whether in the facts and circumstances of the case, the Tribunal is right in passing the final order without considering the question of law raised by the Department that non-production of magazer witness does not constitute a fatal flaw? 2. Whether the Tribunal committed an error in not considering the fact that stock taking conducted by the eye estimation as pointed out by the first appellate authority is not a proper method?" 2. The brief facts of the case are as follows: The appellant/assesssee is engaged in the manufacture of CTD Bars falling under chapter sub-heading 7214/7204 of the first schedule to the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal came to hold that the case of the Department was on the basis of the unretracted statement of Shri.J.Balaji, Manager of the assessee - company and the mahazar clearly showing shortage. The Tribunal did not accept the findings of the Commissioner (Appeals) that the shortage could not be ascertained in the manner done by the Department and allowed the appeal filed by the Department. However, the Tribunal following the case of Gaurang Alloys & Iron Ltd. Vs. CCE Ranchi [ 2010 (252) ELT 67] deleted the penalty imposed under Section 11AC of the Central Excise Act. 5. As against the said order of the Tribunal, the assessee is before this Court. 6. Heard learned counsel appearing for the assessee and the learned standing counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to our attention the plea of the Department in the appeal filed before the Tribunal that non-production of the mahazar witness was not fatal to the case, by producing the memorandum of appeal filed by the Department before the Tribunal. 9. In the absence of any such material, there is no possibility for this Court to consider this issue at all. The next question is whether stock taking conducted on eye estimation is fatal to the case of the Department. We find that the order of the Tribunal is not on the basis of visual inspection, but based on mahazar records recording the shortage of goods, which has been done in the presence of the independent witnesses and such shortage was supported by the unretracted statement of Mr.Balaji, Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X
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