2010 (8) TMI 224 - AT - Central Excise

Tribunal upholds Commissioner's decision in molasses shortage case, emphasizing technical factors

The Tribunal upheld the Commissioner (Appeals)'s decision in favor of the respondent, rejecting the Department's appeal regarding a shortage of molasses ... Demand – shortage of stock of molasses - SDR was not in a position to tell the reasons for adopting 5% allowance in respect of tank No. 1 and 6% for tank No. 2 - there is no evidence that they have not looked into the other aspects like contents of air bubbles - reason for adopting in two different percentages for allowance by the investigating officers has not been explained – Held that: - grounds of appeal do not disclose any material to hold that the Commissioner (Appeals) erred in accepting the explanation for shortage - appeal is rejected Issues:Appeal against Commissioner's order dated 31-3-2008 regarding shortage of molasses found during stock verification.Analysis:The appeal by the Department was against the order of the Commissioner (Appeals) regarding the shortage of 6037 Qtls. of molasses found during stock verification at the respondent's premises. The shortage was confirmed by the original authority, leading to a demand of Rs. 3,07,887/- and an equal penalty imposed. However, on appeal, the Commissioner (Appeals) set aside the original authority's order on both merit and time bar grounds.During the hearing, the Department's representative highlighted that the shortage was admitted by the authorized signatory but attributed it to less foam formation during December. The Department argued that once shortage was accepted during stock taking in the presence of witnesses, it cannot be refuted. The Department relied on certain decisions to support its stance.On the other hand, the respondent's advocate argued that molasses being a hygroscopic substance, dip reading is an approximate process requiring adjustments based on factors like temperature, foam condition, and specific gravity. The technical reasons for the shortage were submitted to the original authority, but relief was not granted. The respondent supported the Commissioner (Appeals)'s reasoning, emphasizing the technical aspects and explanations provided.After considering both sides' submissions and examining the records, the Tribunal noted discrepancies in the investigation process. The investigating officers did not provide reasons for adopting specific percentage allowances for foam in different tanks, nor did they consider factors like temperature and specific gravity. The Commissioner (Appeals) found the dip reading method approximate and not foolproof, questioning the lack of explanation for the varying percentage allowances. Ultimately, the Tribunal found no merit in the Department's appeal, as the Commissioner (Appeals) had accepted the respondent's reasoning based on relevant factors like temperature and specific gravity.In conclusion, the Tribunal rejected the Department's appeal, emphasizing that the case was about examining the reasons for the shortage rather than disputing the shortage itself. The Commissioner (Appeals)'s decision to accept the respondent's explanation considering various factors was upheld, highlighting the importance of thorough investigation and consideration of technical aspects in such cases.