9911796707
TMI Blog2015 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under Rule 173Q and allowed redemption thereof on payment of fine of Rs. 1 lakh. A shortage of 11,61,269 bottles valued at Rs. 11,03,264.10 and the duty there on amounting to Rs. 4,41,305.64 (Basic) and Rs. 22,065.20 (Special Excise duty) was confirmed under Rule 9 of Central Excise Rules, 1944 read with Section 11A of the Act. Further penalty of Rs. 20,000/- was imposed on the appellant under Rule 9(2), 52A, 173Q and/or 226 of Central Excise Rules, 1944. Further, order was made for confiscation of land, building, plant, machineries and materials used in connection of the manufacture and production , storage, removal or disposal of such goods and any other excisable goods on such land or such building or produced or manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in adjacent premises. However, the permission was not granted despite several correspondence by the appellant including the letter sent to the Collector of Central Excise and Customs during the period 1988-99. On 27.1.90 at about 8.30 pm there was a fire in their factory, which affected a part of the bonded store room. The appellant had immediately informed the incidence of fire to concerned authority i.e. Fire Brigade and Police and also informed in the writing to the department on 29.1.1990. In pursuance of the incidence of fire after about 15 days on 15.2.1990, the Revenue undertook stock taking which continued till 17.2.1990. It is further pointed out by the Counsel that stock taking started in evening of 15.2.1990 and continued ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and there are several discrepancies. 4.1 As regards the alleged excess goods, it was pointed out by the appellant that stock taking not having been properly done, the excess goods shown in the Panchanama was incorrect and this was obvious on the fact that the some of the goods shown in the excess were also appearing in the list of shortages. 4.2 A show-cause notice dated 30.5.1990 was issued on the aforementioned facts wherein, it was alleged that S.K. Amin, employee of the appellant having deposed that the godown assistant are well conversant with the stocking method of bottles and varieties of bottles and hence there was no mistake or lapse in physical stock taking of the stock lying in premises. Further, the said Mr. Amin has also ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re including land, building, plant, machinery, materials, conveyance, animal etc. used in connection with manufacture of goods. 4.3 The appellant contested the show-cause notice and in reply dated 29.6.1990, wherein it is mentioned the difficulty faced in stocking the manufactured goods for shortage of place and stocking the goods in the existing premises, glass being a delicate commodity subject to breakage. It is further stated that inspite of notice given within 48 hours of fire, i.e. on 29.1.1990, no response was received and stock taking was taken up only on 15.2.1990 and secondly all the companys documents were kept in the factory and the stock taking was undertaken on the same date at about 6.30 p.m. by which time, the office of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruling of this Tribunal in the case of Hans Steel Rolling Mills Vs. Commissioner of Central Excise, Ludhiana 2007-TIOL-2206-CESTAT-DEL, wherein the facts were that the assessee was engaged in manufacturing of steel rolled products. On 2.8.2002 a truck belonging to the firm was intercepted and on inquiry it was noticed that the bill was for 13.585 MT of MS Angles. On weighment on a nearby Kanta, the material loaded was found to be 12.255 MTs of re-rollable scrap. On scrutiny of the records, it was found that the assessee had not issued any invoice/duty paying document for the re-rollable scrap which was being transported in the said truck nor the same was accounted in the record. The said discrepancies and/or clandestine removal were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rival contentions, I find that it is an admitted fact that the appellant factory was having an average stock of two crore bottles. As per the finding in the Order-in-Original, the shortages found by the Revenue is 11,61,269 bottles and excess worked out as 3,64,682 bottles. Thus, the net shortage is 7,90,387, as worked out by Revenue. For calculation purpose rounding off to 8 lakh bottles, in view of the average stock of 2 crore bottles, the shortage worked out is about 4%. I hold that this is a normal percentage of discrepancy in the nature of business of the appellant. Further, I take notice of the fact that the stock taking had been started at 6.30 pm on 15.2.1990 which was continued throughout the night in poor lighting condition and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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