2004 (2) TMI 179

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..... nd in the factory premises of the respondents by the officers of the Central Excise on 27-9-2001 at the time of their visit. He has also contended that the Commissioner (Appeals) has ignored the fact that the panchnama was attested by Sanjay Gupta, Manager and Authorised Signatory of the respondents without any objection regarding the actual weighment of the stock and that the duty was debited at the spot itself without any objection by the respondents. He has further contended that the ratio of law laid down in Bhilai Conductors (P) Ltd. v. CCE, Raipur - 2000 (125) E.L.T. 781 relied upon by the Commissioner (Appeals), has got no application to the present case and it has been wrongly made basis for reversing the order-in-original. Learned .....

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..... ed and that his signatures were obtained under coercion on it. The subsequent version of the panch-witnesses, forwarded by the respondents along with their reply to the show cause notice which was filed after the service of the show cause notice, that the actual weighment was not done, could not be attached any legal value, especially when the correctness of the panchnama had not even been challenged in the reply to the show cause notice by the respondents themselves. All that had been alleged by them therein is that no actual weighment was carried out. The fact that Sanjay Gupta in his statement nowhere admitted the shortage, is of not much significance especially when he had not disputed the correctness of the contents of the panchnama wh .....

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..... s cannot be accepted. Learned Commissioner (Appeals) has ignored all the above referred facts and circumstances. It so appears that he was working under the belief that it was a case of confiscation of the goods on account of non-accountal and that is why he has referred to the ratio of law laid down in Bhilai Conductors P. Ltd. (supra). This shows that the Commissioner (Appeals) did not apply his mind to the facts of the case and the issue involved. The ratio of law relied upon by the learned JDR in Mayur Industries (supra) wherein it has been observed that when the partner of the assessee admitted the shortage and voluntarily deposited the duty amount, the plea that no physical verification was carried out could not be accepted, is fully .....

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