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TMI Blog2005 (1) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellants are as under :- (a) The appellant laid stress on the fact that the notice itself in Para 15 has made a categorical assertion to the fact that the Department had on verification found that the customers of HR sheets/plates, which had been manufactured out of HR coils and which are alleged to be the shortage and clandestinely removed, had found that HR sheets/plates had been received by the respective customers under cover of Central Excise invoices on payment of duty. It was submitted that this being the admitted position, the finding of the Commissioner that there was clandestine removal of HR coils is contrary to the result of the investigation. (b) It was also contended that no physical verification of stock of HR sheets/plates etc. was conducted by the Department on 9-11-97 as the Panchanama drawn on 9-11-97 which was recorded in Hindi states that only "Jayaja" i.e. inspection of the stock of HR sheets/plates was taken as distinct from the word "Ganana" i.e. counting which is mentioned in the earlier Panchanama drawn and day earlier i.e. on 8-11-1997 under which stock of HR coils was verified. (c) The appellant further pointed out that it had i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment file. (c) that it was possible for the appellant to have manufactured the goods, stated to have been cleared to the various buyers out of fresh raw-material during the period 10-11-1997 till 8-12-1997 and therefore the letter dated 8-10-1997 did not conclusively establish Appellants case. 4. Responding to the submissions of ld. Jt. CDR, the counsel for the appellant submitted that : (a) that Page 122 of the Appeal paper book draws the correlation between the quantity transported by the transporter as indicated in the contractors bill and the quantities claimed to have moved to the CTL machines. (b)(i) the letter dated 9-10-1997 bears an acknowledgement from the Department which is not disputed in the impugned order. (ii) the mere absence of the letter in the Department file does not help the Departments case. In any case the subsequent letter dated 8-12-1997 repeats the contents of the earlier letter and in respect of this subsequent letter, there is no dispute about its availability in Departments file. The fact that the Department chose not to cause verification even after the letter dated 8-12-1997 is enough to draw inference against the Department. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be spread over hundreds of acres. In any case a serious charge of shortage and clandestine removal cannot be sustained on the basis of such generalised observations and opinions of the Commissioner. (vi) We also observe that the appellant had made a claim in the course of investigation that the physical verification of stock had not been carried out on 9-11-1997 and stock recorded was only based on estimate. In his letter dated 9-11-1997, the appellant had offered to the Department to carry out a joint physical verification of the stock. Though the Commissioner claims that the said letter is not available in his file, even though the letter seems to bear an acknowledgement, there is absolutely no answer to the appellants 2nd letter dated 8 December 1997 receipt of which is not disputed, wherein the appellant had informed the Department the fact that its reconciliation process of captive consumption and production at CTL II machine was complete and it had come to light that the stock of HR coils which were shifted to CTL II machine during the period April to August 1997 for being cut to length and the resultant product i.e. HR sheets which was lying at the project site had not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner in Para 47 of the impugned order, wherein the Commissioner has held that : "here in this context it appears that the investigation too has lost the proper track. Because the goods if any claimed to be were available and cleared without any physical verification by the investigating agency after a gap of 1 month cannot be treated as the same goods which were dealt in the Panchanama dated 8/9-11-1997. This is more so because the assessee had themselves submitted in their reply that their installed capacity in 6 Lakhs M.T. of HR coils which comes approximately 50,000 M.T. per month. Since, the quantity involved in the instant case is 23,736 M.T. and the time gap involved is more than a month, there is an innate possibility of manufacture of this much quantity of fresh goods during the intervening period. Hence it appears that the investigation have lost a vital point regarding the indepth investigation as to from where the raw-materials for the said goods claimed to be cleared in the month of December 1997 were procured by the assessee and when the said goods were manufactured by them. However, since the instant show cause notice is silent on this point, it is not being dee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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