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TMI Blog2019 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... f entering into the daily stock account - The charge of clandestine clearance has been made without any other evidence and it is a conclusion drawn solely on the basis of the discrepancy in the physical stock vis a vis daily stock account. This discrepancy needs to be appreceiated in the background of the fact that the discrepancy consist of only 0.31% of the total production during the said period and also from the fact that the appellant do not stand to gain by evading Central Excise Duty as they were availing benefit of Notification No. 39/2001-CE which entitled them to claim refund duty paid through PLA in cash - where the shortage was insignificantly low as compared to total production and the appellants were not gaining by clandest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut claimed that the said shortage is on account of the recording of the quantity manufactured without proper weighment of the same. He further pointed out that the manufacture of TMT bars had stopped since, May 2008 and hence, checking of stocks of goods on daily basis was not done, however, they paid Central Excise duty on the goods found short. Sh. Kunal Bubna noticee No. 2 in his statement stated that he was looking after day to day working of purchases, sale and production. He stated that they are manufacturing, MS Billets, MS Ingots, SS Billets, TMT bars, MS angles and beams since 2005 and were claiming Notification No. 39/2001-CE dated 31.07.2001. He pointing out that they were using there in-house kiln to manufacture billets/ingots. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39/2001-CE dated 31.07.2001 there could not be any intention to evade duty, as whatever duty was paid by them would have been available as refund through PLA under Notification No. 39/2001. Thus, it was held that the charge of clandestine removal is not sustainable. On this ground, he also dropped proceedings against Shri Kunal Bubna noticee No. 2. The revenue challenged the order before Commissioner (Appeals). The Commissioner (Appeals) relies on the decision of the Tribunal in the case of B.R. Industries Ltd.-2010 (259) ELT 292 (Tri.-Del) and in case of Swastic Industries-2002 (142) ELT 710 (Tri.-Kolkata) to uphold the charge of clandestine removal. He rejected the contention of the appellant that shortage was just 0.31% of the total prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured no actual weighment was done at the time of entering into the daily stock account. The charge of clandestine clearance has been made without any other evidence and it is a conclusion drawn solely on the basis of the discrepancy in the physical stock vis a vis daily stock account. This discrepancy needs to be appreceiated in the background of the fact that the discrepancy consist of only 0.31% of the total production during the said period and also from the fact that the appellant do not stand to gain by evading Central Excise Duty as they were availing benefit of Notification No. 39/2001-CE which entitled them to claim refund duty paid through PLA in cash. In this background where the shortage was insignificantly low as compar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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