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TMI Blog2022 (7) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular stated above. That apart, the Tribunal has also taken note of the earlier decisions of the Tribunal and in particular, the decision in the case of RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMR. OF CUS. C. EX., VISAKHAPATNAM [ 2008 (9) TMI 663 - CESTAT, BANGALORE] . The facts of the said case are identical to that of the case on hand - it was held in the case that As far as clearance of these products is concerned, it is based on weighment. But when the products are used for capital consumption, the accounting of clearance for the capital consumption is done on the basis of standard grab weight. During the stock verification, the method followed is volumetric calculation method. Based on the volume and density the weight is calculated. Thus, we find that different criteria are adopted for estimating the pig iron for different purposes. Therefore, in the very nature of the accounting, there is bound to be difference. Unless it is shown that the appellants had cleared the goods without payment of duty in a clandestine manner, or in other words, unless there is evidence to show that there is clandestine clearance, this type of demand of duty is not sustainable. The period cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notionaly determined and actually determined by the respondent assessee and how it was adjusted in their accounts without being reflected in the Central Excise records ? 3. Whether the Circular of CBEC being CBEC circular No.52/79-CX-6 dated 26th October, 1979 is applicable in the present facts and circumstances of the instant case ? We have heard Mr. Uday Shankar Bhattacharyya, learned standing Counsel appearing for the appellant/revenue and Dr. Samir Kumar Chakraborty, learned Senior Counsel appearing for the respondent/assessee. This is the second round of litigation before this Court. Earlier the revenue had filed appeal being CEXA 13 of 2018 challenging the order passed by the Tribunal dated 13th March, 2018, which was in favour of the assessee. The Tribunal in its earlier order dated 13th March, 2018 had followed the order passed in assessee s own case for an earlier period and allowed the appeal filed by the assessee. The Hon ble Division Bench by judgment dated 20th February, 2019 remanded the matter back to the Tribunal noting that it is true that the circumstances of the case relied on by the Tribunal were similar to those of the case of the assessee on ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed during annual stock taking is fixed i) Tariff Item 26AA - 1% ii) Tariff Item 26 - 1% iii) Tariff Item 25 a) Pig Iron - 2% b) Iron in any crude form - 25% The above percentage should be used as a guideline and while deciding cases the investigation reports of the Plant authority referred to above should also be taken into account. 4. All pending cases of stock taking losses may be adjudicated quickly in the light of these instructions. In terms of the above Circular, the condonation of losses for pig iron have been fixed at 2% and for the iron in any crude form at 25% and with regard to tariff item 26AA and 26, it was fixed at 1%. The assessee had filed a reconciliation statement before the Tribunal which shows that the percentage of loss was well within the parameters fixed by the CBEC in the Circular stated above. That apart, the Tribunal has also taken note of the earlier decisions of the Tribunal and in particular, the decision in the case of Rashtriya Ispat Nigam Ltd. vs. Commissioner of Customs Central Excise, Visakhapatnam, 2009 (235) E.L.T 248 (Tri. Bang.). The facts of the said case are identical to that of the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellants. There is no allegation that the appellants have removed goods in clandestine manner. Moreover, the stock taking was done by the appellants themselves. The departmental officers only associated with the same. Hence, the stock taking cannot be said to have been conducted in terms of Rule 223A of the Central Excise Rules. In any case, the shortage arrived at is based on estimates. The estimate cannot be said to be very accurate, as it has got its own limitations. It should also be appreciated that there are practical problems in steel plants in the matter of accounting of their production. The C.B.E.C. Circular No.52/79 Cx.6, dated 26-10-1979 has also laid down certain guidelines with regard to condonation of losses observed during annual stock taking. The appellants submission that the excess/shortage noticed was only marginal should have been given its due consideration. The Tribunal in the case of M/s. Micro Forge (I) Pvt. Ltd. v. CCE, Rajkot reported in 2004 (169) E.L.T. 251(T) has held that when the stock position is arrived at on the basis of estimation, the allegation of shortage of stock and consequent illicit removal of finished goods cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has attained finality. It is not shown to us that the Department has preferred any appeal against the said decision. Therefore, the Department is bound to adopt consistent approach in the matter. Further, we are surprised to note that the period covered by the show-cause notices was as on 31st March, 1989, 31st March, 1990 and 31 st March, 1991. Two show-cause notices were issued on January 30, 1991 and March 31, 1992 for which the assessee had submitted replies on August 2, 1991 and January 25, 1993, after a gap of nearly 17 years from the relevant period where a notice of personal hearing was issued on 19 th August, 2006 and the respondent assessee co-operated with the adjudication and also filed the written submission and the adjudication order was passed on 21st November, 2006. It is not clear as to why there was so much of delay in taking up the show-cause notice for adjudication and more particularly, when 17 years have elapsed after the relevant period the adjudication itself should be termed to be a stale adjudication. Thus, for the above reasons, we are of the view that the Learned Tribunal rightly allowed the appeal filed by the respondent assessee and the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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