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TMI Blog2015 (10) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is only on the basis of presumptions and assumptions. Duty cannot be demanded on allegations based on assumption and presumption - in the case of Gulabchand Silk Mills Pvt. Ltd. (2005 (3) TMI 192 - CESTAT, BANGALORE) there was excess goods found in the factory and same cannot be explained by the assessee. Therefore, it was held that the excess stock is meant for clandestine clearance but that is not the case here. Further, I find that in the case of Nissan Thermoware (P) Ltd. (2010 (12) TMI 487 - GUJARAT HIGH COURT) relied upon by the appellant the shortage of input which has been admitted by the director cannot be ground to demand duty for holding that same has been used in manufacturing of goods removed clandestinely. Therefore, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of iron scrap was done and it was found that there was a shortage of 465.98 MT of duty paid iron scrap and a shortage of 1.005 MT of non duty paid iron sponge. A panchnama was drawn for stock taking done on 30.08.2001 but no panchnama was drawn for stock taking on 28.08.2001 and 13.09.2001 to 15.09.2001. Statement of authorized signatory and Managing Director of the appellant was recorded, They could not explain satisfactorily the reason for shortage of inputs / finished goods. Therefore, a show cause notice was issued to the appellant to allege that inputs i.e. sponge iron and iron scrap found short were used by the appellant in manufacturing of MS Ingots i.e. final product and same has been cleared clandestinely without payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MS Ingots the appellant requires sponge iron as well as iron scrap as inputs. Therefore, by any means it cannot be alleged that appellant has used inputs for manufacturing of final product i.e. MS Ingots in the absence of any evidence on record on shortage of iron scrap. Therefore, allegation of Revenue that the short found inputs have been used by the appellant for manufacturing activity is not sustainable, Consequently, impugned order is required to be set aside. 4. On the other hand, Ld. AR supported the impugned order and submits that as per the show cause notice as well as the impugned order it is coming out that weighment has been done during the period 13.09,2001 to 15.09.2001 and on the basis of the weighment shortage was deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the Revenue could have made a case against the appellant for shortage of sponge iron deducted on 30.08.2001 that either they have not received the sponge iron or same has been cleared as such without reversal of Cenvat Credit. But Revenue has not opted that route to demand duty from the appellant. The allegation in the show cause notice is that the said sponge iron has been used by the appellant for manufacturing final product. Admittedly, to manufacture final product i.e. MS Ingots the sponge iron as well as iron scrap is required. But as per the evidence on record there is no shortage of iron scrap. Therefore, the allegation of manufacturing MS Ingots of the sponge iron used for manufacturing the same is not sustainable in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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