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TMI Blog2015 (3) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... to the tune of 116.2 MT whereas the actual stock was found of 52.71 MT, but it was found recorded in the books as 168.91 MT. Further, the raw material i.e., sponge iron was also physically counted and against the total stock has shown as per the records as on 17-7-2009 as 1375.235, the actual stock was found 260 MT. There was shortage of 725.235 MT. On the basis of these shortage, a show cause notice was issued to the appellant which was adjudicated and demand of duty was confirmed on the shortages along with interest and equivalent amount of penalty were also imposed. The said order was challenged by the assessee before the ld. Commissioner (A) who drop the charge of shortage of finished goods but confirm the charge of shortage of raw mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, I find that the finished goods have been not physically counted but the stock taking was done on average basis. Therefore, the ld. Commissioner (Appeals) in impugned order has observed as under : On the issue of the alleged shortage in stock of finished goods i.e. the shortage of 116.20 MT of M.S. Ingots I find that since the beginning the appellants have been contesting that the weighment of the subject goods (inputs) was done on an average basis and not on actual basis and such method of average weighment cannot be treated as authentic and in these circumstances, the weighment cannot be treated and in these circumstances, the allegation of the shortage in stock cannot be sustained. I find that the relevant portion of the Panchna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of such average/estimated weighment and demand of duty on that count is not sustainable. In the above context, the Hon'ble CESTAT's judgment in the case of Nilesh Steel & Alloys (P) Ltd. v. CCE, 2008 (229) E.L.T. 399 (Tri. Mum.) as relied upon by the appellants is also relevant wherein the CESTAT has observed/held that Weighment ascertained on the basis of eye estimation is prone to error. It may result in wide variation. It is not the accurate and authentic method to ascertain the weight of the physical stock lying in the factory. There is every chance of the error creeping of such weighment. Verification carried out by the officer, being based on eye estimation is not reliable. Hence, the demand of duty raised on the shortages det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiles [2004 (168) E.L.T. 381( Tri.-Mumbai)] for confirmation of the demand of duty on finished goods. 10. In this case, I find that the demand has been confirmed against the assessee on the basis of stock taking done at the time of investigation. The issue is that whether stock taking has done on eye estimation or physically verified. It is to be ascertained from the facts of the case. Therefore, the case relied upon by the ld. AR have no relevance to the facts of the case. 11. In view of the above discussions, I do not find any infirmity in the impugned order, the same is upheld except some calculation error as discussed. 12. Therefore, the Revenue's appeal is dismissed. 13. The assessee appeal is remand back only f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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