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TMI Blog2019 (2) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... to be charged to duty at highest rate in term of Clause (h) of the circular, after adjusting for permitted losses. The matter is remanded to the original adjudicating authority for fresh decision following the aforesaid decision of the Tribunal in appellant’s own case - appeal allowed by way of remand. - Appeal No. E/1868/2010 & E/10411/2013-DB - A/10265-10266/2019 - Dated:- 14-2-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Mr. Willingdon Christian (Advocate) For Respondent: Mr. Sameer Chitkara (AR) ORDER Per: Raju The appellant M/s IOCL are engaged in manufacture of various products like motor spirit (petrol), High Spirit Diesel (HSD, Furnace Oil (FO) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason being the fact that the dip rod method is a very inaccurate method of measuring quantities. Secondly, he pointed out that the goods being liquid in nature and the measure being volumetric in nature, there is effect of temperature on the measurements. This would lead to errors in measurement. He argued that it would not be proper to refuse accommodation to the appellant on account of clearances where the quantity dispatched was higher than the quantity received. He argued that any duty liability should come after adjustment of excesses against shortages. He relied on the following case laws: CCE vs Yamuna Gases Chemicals Ltd. 2011 (271) ELT 209 Bajaj Tempo Ltd. 2004 (172) ELT 473 Jindal Steel Power Ltd. 2016 (342) ELT 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seen that the product dispatch from the factory and that received in the warehouse were different both in quality as well as quantity. The ULMS and HSD would have some intermixing of SKO, however, as the norms of Aviation Turbine Fuel (ATF) being very stringent no intermixing SKO was allowed in ATF. The demand confirmed is essentially on the quantities of shortage of one product without considering the excess in another product by refusal to adjust these differences. Reliance has been placed on the commodities manual of Petroleum product and the Board Circular referred therein and it has seen observed that latest instruction of the Board dated 23.09.2002 reverses the earlier position. For this argument reliance has been placed on Clause- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispen (f) The limit of transit loss to be condoned shall be 0.25 percent as per the existing guidelines. (g) Wherever the imported and indigenous products are involved, the annual reconciliation statement s the details separately for the purpose of reconciliation. (h) Wherever, shortages occur, the assessment may ordinarily be carried out on the basis of highest rate of duty application for the particular product during the quarter/period under consideration the assessee establishes that the shortages relate to a particular batch for which the value and rate not in dispute. A Perusal of the Clause-H of the said Circular shows that the shortages are to be assessed on the basis of highest rate. The directions in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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