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TMI Blog2008 (4) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant. S/Shri Sanjiv Sen and Partha Sil, Advocates, for the Respondent. [Order]. - The Revenue filed this appeal against the order of the Commissioner (Appeals), whereby demand of duty, confiscation of the goods were set aside and penalty was reduced to Rs. 10,000/-. The relevant facts of the case, in brief, are that the Respondents are engaged in the manufacture of Ferro Alloys falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. On 2-1-98, the Central Excise officers visited the Respondent's factory and verified the stock of finished goods. They found shortage and excess of finished goods of different description, in packed and loose conditions. On 3-1-98, Shri C.V.A. Verma, Works Manager o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings of the Commissioner (Appeals). He submits that the adjustment of excess and shortage of materials are proper and relied upon the decisions of the Tribunal as under:- (a) Trac Air-Conditioning Systems Ltd. v. CCE, Bangalore - 2005 (180) E.L.T. 327 (Tribunal-Bangalore) (b) Bhartiya Tar Udyog v. CCE, Delhi-III - 2005 (192) E.L.T. 1115 (Tribunal-Delhi). He further submits that the confiscation of the excess materials, out of which 4.5 MT. contaminated materials, is not proper. He relied upon the decision of the Tribunal as under:- (a) Goenka Products v. CCE, Allahabad - 2005 (186) E.L.T. 75 (T-D) (b) M/s. Jaysynth Dyestuff India Ltd. v. CCE, Surat - 2005 (179) E.L.T. 83 (Tribunal-Mumbai) (c) M/s. Birla Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods in RG-1 Register does not render such goods liable to confiscation. It is found that the excess and shortage quantities were recorded in the RG-1 Register improperly. In the case of Bhartiya Tar Udyog (supra), it has been held that, prima facie, direct correlation of short found inputs with excess found finished goods, lying in the factory established and no tangible evidence to prove clandestine removal of the inputs short found by the Appellant, confiscation and penalty are not warranted. In the present case, the Respondent adjusted the loose quantity of finished goods of same quality against the packed quantity, duly recorded in the RG-1 Register. So, the adjustment of packed/loose materials done by the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) observed that a quantity of 32.771 M.T. of Ferro Alloys was found in excess. It has further been observed that the Adjudicating Authority has not been able to substantiate the charge of clandestine removal with any other corroborative evidence and the confiscation of goods is unjustified. I do not agree with the findings of the Commissioner (Appeals). There is no dispute that the quantity of 32.771 M.T. of finished goods was found in excess. But, there is no proper explanation given by the Respondent in respect of excess quantity of 32.771 M.T. of Ferro Alloys. Admittedly, the excess quantity was unaccounted and the same were seized from the Respondent's premises and no proper explanation was given and, therefore, confiscation is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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