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TMI Blog2016 (9) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant's factory have excepted the recorded stock and at the end of the molasses season have accepted the net excess at 961qtls. Therefore, I hold that the whole demand is based on assumption and presumptions and is fit to be set aside. The appellant informs that the duty and penalty in dispute have been appropriated by the Central Excise authority during the pendency of the appeals with the refund payable to the appellant. Accordingly, I direct the adjudicating authority to refund the amount adjusted, being in the nature of pre-deposit as the same have been adjusted out of refundable amount during pendency of the appeal, with interest as per Rules. - APPEAL No. E/55808 & 55816/2014-EX[SM] - Final Order No. 70753-70754/2016 - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puty Chief Chemist of the appellant who had stated that the actual discrepancy can be known upon emptying of the tanks, only due to various factors including the foam factor. The appellant was required to show cause as to why not the quantity of 5922.1qtls, Molasses found in excess should not be confiscated under Rule 173-Q of Central Excise Rules, 1944 and further why not penalty be imposed as it appeared that the said excess stock of Molasses was kept in the steel tanks without being accounted in the daily stock account, namely, RG 1 register. 3. Subsequently, when the recorded stock of molasses was completely sold towards the end of the molasses season in October, 1998. The appellant found that there was an excess stock in the tanks b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged excess quantity of 5922.1qtl was held liable to confiscation with the option to redeem on payment of redemption fine of ₹ 50,000/-. Further, personal penalty of ₹ 5000/- was imposed on the assessee. Further, observing that in case of molasses redeem by the appellant, they will be liable to pay appropriate duty on clearance vide Order-in-Original dated 19/08/99. 6. The other show cause notice dated 05/08/99 was adjudicated vide Order-in-Original dated 27/12/99 on contest and the proposed amount of ₹ 2,48,055/- was confirmed and further penalty of ₹ 50,000/- was imposed under Rule 173-Q of CER, 1944, along with further penalty in respect of Molasses cleared clandestinely imposed penalty of ₹ 2000/- 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that storage tanks of molasses. It is further urged that on the date of inspection 14/07/98, the variation found was about 13%. This Tribunal in several cases has accepted variation of about 10% due to foam factor. Accordingly, the variation found by estimation of stock, resorting to dip method, is a normal variation and no adverse inference was called for. Further, molasses are under physical control of the State Excise authority under the State laws and relevant Rules known as U.P. Seera Niyantran Niyamavali . Under the said Act and the Rules of the State Government, the appellant even for their own captive use cannot draw a Single Quintal of molasses without the permission of the appropriate authority. It is further urged that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in physical control of the stock of molasses of production, storage and dispatch in the appellant's factory have excepted the recorded stock and at the end of the molasses season have accepted the net excess at 961qtls. Therefore, I hold that the whole demand is based on assumption and presumptions and is fit to be set aside. Accordingly, I allow both the appeals and set aside the impugned orders. The appellant shall be entitled to consequential benefits, if any, in accordance with law. 11. The learned Counsel for the appellants informs that the duty and penalty in dispute have been appropriated by the Central Excise authority during the pendency of the appeals with the refund payable to the appellant. Accordingly, I direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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