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TMI Blog2015 (6) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ained unproved. - Demand of duty set aside - Decided in favor of assessee. - E/55421/2013-EX(SM) - Final Order No. A/51883/2015-EX(SM) - Dated:- 9-6-2015 - Shri Ashok Jindal, Member (J) Shri R. Santhanam, Advocate, for the Appellant. Shri R.K. Mishra, DR, for the Respondent. ORDER The appellant is in appeal against the impugned order wherein duty has been demanded from the appellant on the allegation that appellant has cleared the goods clandestinely. 2. The facts of the case are that appellant is a manufacturer of CTD and TMT bars and Ingots. On 15-7-2010 at about 7 pm an investigation was conducted at the premises of the appellant and stock taking was done on the basis of average taken up by weighing 5 bundles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not ascertained where goods have gone, how the goods have been transported, whether goods have passed through any checkpost or not? Without doing this exercise the demand has been confirmed against the appellant which is not sustainable. In these terms he prayed that impugned order be set aside. 4. On the other hand Ld. AR submits that the shortage works out to near about 16% in this case and weighment has been done on physical verification of 5 bundle of each size and thereafter average has been taken which is multiplied by number of bundles and weight has been taken. Therefore, weighment has been done on the best method available at the relevant time and same has not been agitated by the appellant. Therefore, the finished goods were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12mm 88 85 87 88 86 434 86.8 16mm 89 93 92 90 92 456 91.2 20mm 85 87 88 88 87 435 87.0 25mm 46 45 46 45 43 225 45.0 7. On examination of this chart, I find that in this case of 8 MM two bundles are 75 kg., two bundles are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the details of weighment and as per the weighment the difference works out to be around 3.3 MT in the stock of 1092.730 MT which is only a meager quantity. The case law relied upon by the Ld. AR in the case of J.C. Rolling Mills Pvt. Ltd. (Supra) is not applicable to the facts of this case as in that case the assessee could not come with an evidence to show that weighment is not done properly. Moreover, in this case the appellant has come to reply to the show cause notice regarding method of weighment the weighment done on the basis of BIS. In these circumstances, I hold that charge of clandestine removal remained unproved. Therefore, duty cannot be demanded from the appellant. 9. With these observations, I set aside the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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