2003 (12) TMI 505

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....rtmental Representative, submitted that when the Central Excise officer verified the finished products manufactured by the respondents on 4/5-12-98, they found shortage on 12492 pipes of various sizes weighing on 247.442 MT valued at Rs. 40,97,316/-; that the Additional Commissioner under Order-in-Original No. 137/2001, dated 13-2-2001 confirmed the demand of duty of Rs. 6,14,597/- and imposed a penalty of equivalent amount under Section 11AC of the Central Excise Act besides imposing another penalty of Rs. One lakh under Rule 173Q read with Rule 92 of the Central Excise Rules, that however, on Appeal the Commissioner (Appeals) had allowed the Appeal observing that the physical verification was conducted on the basis of weighing the standar....

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....hen the goods have been clandestinely removed. 3. On the other hand, Shri Bipin Garg, learned Advocate, submitted that the Central Excise Officer had calculated the quantity on the basis of emperial formula which is used by them also for the purpose of statutory records; that however, at the time of removing the pipes to their customer the actual weight is recorded; that there could be difference on account of this reason in the weight of the pipes mentioned in the RG I register as ascertained by the officer; that further, the officer had taken each pipe as standard pipe whereas assorted pipe may have various wall thickness and for this reason, the weight should have been calculated independently; that as per ISI specification the t....

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....t is but to be presumed that the same has been removed from the factory without payment of duty. In the case of clandestine removal, it is not always possible to bring on record the purchaser of the goods removed clandestinely. A perusal of the show cause notice also reveals that Shri V.K. Rathi, Commercial Officer and authorized Representative of the Respondent, was satisfied with the process of counting of stock. He has deposed in his statement dated 5-12-98 that they had not physically verified the goods in the factory since long time. Similarly, Shri Ganesh Verma and H.D. Verma of the respondents were also satisfied with the counting of stocks. Nothing has been brought on record by the respondents to show that their representatives had ....