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TMI Blog2015 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 again the same was continued on 16.2.1990 and was continued in the morning of 17.2.1990. Thus, the mistakes or errors in stock taking cannot be ruled out, and as such, the shortage and/or excess pointed out by the Revenue cannot be held to be perfect. Thus, I hold that the shortages or excess found is the normal variation in stock taking for which no adverse intention is called for. Accordingly, I allow the appeal and set aside the impugned order. - Decided in favour of assessee. - Appeal No. E/224/91 - Final Order No. A/1697/2015-WZB/SMB - Dated:- 30-4-2015 - SHRI ANIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.12.1999 this Tribunal had rejected the appeal. Being aggrieved, the appellant preferred an appeal before the Hon'ble Bombay High Court being Central Excise Reference Application No. 30 of 2000 and vide order dated 6.10. 2003, the Hon'ble High Court found that the order of the Tribunal was passed after a gap of two years from the date of hearing and accordingly, the same was set aside without entering into the merits of the order of the Tribunal and the matter was remanded back with the direction of hearing the matter afresh after giving reasonable opportunity to the appellant, following the principles of natural justice. 3. Heard the parties. 4. The learned Counsel for the appellant states that the appellant is a manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the supervision of the Central Excise officer, shortage was ascertained as compared to the RG-1 register, the same is detailed in the Annexure. On the alleged shortages, a short payment of Central Excise duty was computed of ₹ 4,41,305.64 (Basic duty) and ₹ 22,065.20 (Special Excise duty), which was directed to be paid or debited immediately. The appellant immediately replied stating that the alleged shortages as per the show-cause notice in the annexed list was incorrect as the goods were very much present physically in the factory premises and requested the Assistant Collector to depute the Revenue officers immediately so that the applicant can conclusively prove that there was no shortage as alleged. Along with the let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock of excisable goods ascertained physically was the actual stock lying in the premises and that he was present personally during the stock taking and being satisfied accepted the shortage and excess, noticed in the stock position. Accordingly, it appeared to the Revenue that the appellant have not paid duty amounting to ₹ 4,64,313.40 admittedly on goods found short as alleged in the show-cause notice and the assessee company have manufactured goods valued at ₹ 4,60,708.84 but did not account for in the Central Excise statutory record viz. RG-1 register with an intent to clear such goods clandestinely evading payment of duty. It further appeared to the Revenue that the appellant company failed to determine proper amount of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable in the night hour, the discrepancies in stock taking have occurred. It was also stated that on 20.2.1990 along with subordinate official, the Range Supdt. had come for stock taking in the factory premises at about 4 p.m. At about the same time, the Asstt. Commissioner also came along. As the Managing Director had to leave the office to attend urgent work at home, the official of the Revenue got annoyed. At the same time, goods alleged to be in excess were seized under Panchanama. On the very next date on 21.2.1990, as aforementioned, letter was issued demanding the excise duty short paid on the alleged discrepancies found in the stock. It is further on record that the appellant has pointed out the discrepancies and also prayed for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise Vs. Goyal Ispat Ltd. - 2010-TIOL-1684-CESTAT-MAD, wherein shortage of goods were found on stock verification. The departments case was found on the statement of the Manager of the assessee company and the mahazar, clearly showing shortage. The assessees defence which had been accepted by the Commissioner (Appeals) to the effect that no proper investigation was conducted and therefore, the shortages cannot be ascertained. However, the Tribunal found that the mahazar clearly recorded the shortage and the same was duly acknowledge by the Manager about correct recording of the shortage. It was further fact that Inspector of Central Excise stated that he was not present during the verification, though it appeared that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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