9911796707
TMI Blog2023 (5) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 1954 - CESTAT NEW DELHI] has been relied upon, where it was held that there is no evidence of clandestine removal of the goods. The appellant s representative had only accepted the shortages and there is no inculpatory statement admitting clandestine removal of the such alleged short found goods. There are no reason to differ from those authorities. Resultantly, the impugned decision is observed to be nothing but an act of violating judicial protocol. The adjudicating authority has failed to take into consideration the relevant decisions on this aspect even Departments own decision has been miserable ignored. The findings are not at all in terms of the directions given while remanding the matter to the adjudicating authority. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.05.2013, a search was conducted at the business premises of the appellant where the shortage of the raw material was found. Further, it was found by the department that appellant is supplying some raw material. On the demand the appellant is also supplies the bought out items which were procured from the open market. The department wants to add the value of these items for the purpose of duty. 2. After physical stock taking of inputs that a Show Cause Notice No.4236-39 dated 04.06.2015 was issued alleging that appellant is engaged in clandestine removal of their finished goods to the extent found short during the course of physical stock verification on 09.05.2013. Accordingly, the demand of Central Excise duty of Rs.3,85,091/- on fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturing process. It is also submitted on behalf of the appellant that despite the directions of this Tribunal vide the earlier Final Order, the quantity of zinc lying in molten state in the bath tank has not been considered by the adjudicating authority. The findings of the authority in paragraph 10.4 are alleged to be wrong as being mere result of the assumptions. 5. To support the contention, it is brought to the notice that the shortage in zinc has been noticed to the tune of 67.882 MTs. Since the appellant had closed its manufacturing activity in the financial year 2021-22 and thereafter had extracted the zinc from the zinc bath tank the quantity of said zinc was then sold against proper invoice. Those invoices are mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d looking into the modus operandi of the appellant as apparent from the structure of the stock register that the authority has arrived at the conclusion in para 10.4 of the order. Impressing upon no infirmity in those findings, ld. DR has requested for impugned appeal to be dismissed. 7. Having heard the rival contentions, it is observed and held as follows:- That the present is the second round of litigation where the adjudicating authority has passed the order pursuant to the directions of remand given by this Tribunal vide their order at 1st round of litigation dated 09.01.2018. In the said order, the authority was required to decide the shortage of raw-material by taking into reference the zinc which was lying in the bath tank. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re stock weight prior drawing the conclusion. Taking up average weight for building a case of shortage with the allegation of clandestine removal has been held by the Department itself to be an illegal irrational act of the Department. The earlier decision of this Tribunal in the case of Bihariji Marking Pvt. Ltd. vs. CCE, Jaipur reported as 2015 (317) ELT 298 (Tri-Del.) has been relied upon. Another decision of Chandrapur Enterprises Ltd. v. CCE S.T., Meerut I reported as 2014 (310) EL 904 has also been relied upon. 9. I do not find any reason to differ from those authorities. Resultantly, the impugned decision is observed to be nothing but an act of violating judicial protocol. The adjudicating authority has failed to take into con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tank would have been considered, there would not have been alleged shortage except for the miniscule which is unavoidable on account of wastage. 11. Above all, it is observed that the allegations otherwise are of clandestine removal. Department has not produced any evidence to show that the appellant has cleared goods without invoice or without payment of excise duty. No single document was found issued by the appellant nor there was a confessional statement of the appellant. Alleged shortage, as discussed above, is not at all sustainable. 12. In the light of entire above discussion, the findings in the order under challenge are hereby set aside. Consequent thereto, the appeal stands allowed. [ Order dictated pronounced in the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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