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TMI Blog2015 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... rveyed by chartered engineer who had certified 8500 MT steel material mix with slag etc is lying with the factory. This vital fact was ignored by the adjudicating authority that has all the opportunity to check this fact as the material was lying as it is in the factory. The respondent got rejected material tested at chemical laboratories which has confirmed that samples contains 46.35% iron. - No infirmity in the order passed by Ld. Commissioner(Appeals) and I am with the fully agreement with his findings therefore impugned order is sustained. - Decided against Revenue. - APPEAL NO. E/84, 85/07 - - - Dated:- 12-5-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. V.K. Shastri, Asstt. Commissioner(A.R.) ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Laboratory Mumbai to know whether the samples is of sponge iron or otherwise. On the basis of test report and comparison of physical stock with the booked stock, it was found that stock of 3433.540 MT was found short as compared to booked stock, accordingly show cause notice was issued, which was culminated into adjudication order No. 152/SS/ADC/2006-07 dated 19/4/2006 wherein Central Excise duty of ₹ 38,49,432/- with ₹ 16,056/- were confirmed on the shortage of inputs, interest under Section 11AB and penalty of ₹ 1 lakh under Rule, 173Q of erstwhile Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944 was demanded. A penalty of ₹ 25,000/- also imposed on the Shri. Prafulla S. Vaidya, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed as the quantification of the physical stock lying in the factory has not been correctly done by the officer; the physical stock of sponge iron was not considered on the basis of chemical examination report only on the ground that the chemical examiner report shows that the iron contain in stock is 60-63 % and chemical examiner as concluded that because of this low percentage of iron contains the material is not sponge iron. It is their submission that even though iron contains admittedly found 60-63%, conclusion of the chemical examiner report that it was not sponge iron is absolutely incorrect. They further submits that approximately 8500 MT of steel material had got mixed with slag lying in the factory as per the survey report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the material. The respondent further submits that department has lead any evidences whatsoever to prove that raw-material found short was in the first instances was the modvated raw-material and secondly same had been removed from the factory. The entire proceedings are based on conjectures and surmises that the raw material found short had been removed from the factory without payment of Cenvat credit amount. 4.I have carefully considered rival submissions. 5. From the facts of the case, I found that the demand was confirmed on shortage of inputs found by the preventive officers. During the verification of stock physical weighment of the goods was not conducted. The stock was verified high ---basis and on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory which was ignored by the department. When this discrepancy was pointed out, the department could have taken sample from said heap and ascertain what was the material this fact was intimated to the officers during the statement at least at that stage samples could have been taken. Respondent got factory surveyed by chartered engineer who had certified 8500 MT steel material mix with slag etc is lying with the factory. This vital fact was ignored by the adjudicating authority that has all the opportunity to check this fact as the material was lying as it is in the factory. The respondent got rejected material tested at chemical laboratories which has confirmed that samples contains 46.35% iron. Respondents contention though out before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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