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TMI Blog2018 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... he buyers - demand upheld. Demand of duty on the basis of variation and quantity in the invoice and the packing list - Held that: - the demand on the said ground stands confirmed only on the basis of difference in the invoice weight and the packing list weight, without there being any other evidence of clandestine manufacture of excess goods and their clearances - Though, such factory may raise doubt against the appellant but cannot take place of evidence so as to confirm the demand - demand set aside. Demand of ₹ 95,345/- based on alleged excess consumption of aluminium scrap which according to Revenue was transferred from their daily stock account i.e. RG-1 register but not entered in their Form-IV register - Held that: - This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. and the balance demand is set aside. As regards, penalty the same is upheld to the extent of the demand confirmed. Penalty on other two appellant - Held that: - no separate role stands attributed to the appellants and no positive evidence stands adduced by the Revenue to show their complexity in the matter - penalty on them set aside. Appeal allowed in part. - Appeal No. E/50989-50991/2017-SM - Final Order No. 51222-51224/2018 - Dated:- 6-4-2018 - Hon ble Mrs. Archana Wadhwa, Member ( Judicial ) Shri Abhas Mishra, Advocate - for the appellant Shri H.C. Saini, D.R. - for the respondent ORDER Per Ms. Archana Wadhwa All the appeals are being decided by a common order as they arise out of the same impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,08,356/- 2. Clearance of excess quantity than quantity mentioned on invoices 1,25,702/- 3. Suppression of consumption of scrap 95,345/- 4. Difference between aging report and RG-1 register 79,392/- 5. On the basis of Ledger-B 1,20,784/- 6. Shortage of finished goods 17,994/- Total 6,47,573/- Hence, the present appeal. 6. After hearing both the sides duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the receipt of the material from the appellant under the cover of said invoices. The said factors discharged the initial onus placed upon the Revenue and it is now for the appellant to establish that the goods were not removed under the cover of said invoices. No documentary evidence has been produced by them to show the cancellation of the purchase orders by the customers. In fact their authorised representative has admitted such clearances along with the admission of receipt of goods by the buyers. The said factors are sufficient to hold against the appellant. Accordingly, I confirm the demand of ₹ 2,08,356/-. 8. Further, demand of duty of ₹ 1,25,702/- stands confirmed on the basis of variation and quantity in the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The demand of ₹ 79,392/- is based on ageing report alleging the difference between the quantity in ageing report and daily stock account for two days i.e. 22.1.2013 and 29.3.2013. According to the appellant the ageing report is prepared for testing ultimate tensile strength and yield strength of shapes/profiles in tensile machine in order to maintain quality. On the said two dates, out of total quantity which met the desired tensile strength was entered in Daily Stock Account and balance was rejected and reused as scrap. Moreover, the ageing report is not a statutory document and no evidence of clandestine removal of such quantity brought on record by the department, therefore the demand of ₹ 79,392/- is liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as there is no other evidence, such shortages by itself cannot be held to be relatable to the clandestinely removed goods. The Hon ble Allahabad High Court in the Case of CCE Vs. Meenakshi Castings - 2011 (274) ELT 180 (All.) has held that no demand of duty can be made on the basis of such shortages. Accordingly, confirmation of duty on the said ground is set aside. 13. In view of the foregoing, the duty of ₹ 2,08,356/- is confirmed against M/s Vimsar Products Pvt. Ltd. and the balance demand is set aside. As regards, penalty the same is upheld to the extent of the demand confirmed. 14. As regards penalty on the other two appellants, I find that no separate role stands attributed to the appellants and no positive evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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