TaxTMI 
TaxTMI 
2008 (4) TMI 575
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....nt and tagged the weight of the cement bags and while despatching second weighment is done. The authorities during the course of audit it was noticed that during the period from April 2000 to July 2000 there was a difference in weight as shown in the invoice and as per the weighment slip, coming to the conclusion that the respondent had cleared the said cement in excess over and above the quantity shown in the invoice, issued a show cause notice for recovering the differential duty. The adjudicating authority came to the conclusion that the respondent had in fact removed the quantity of 37.615 MT of the finished goods without payment of duty. Coming to such a conclusion he confirmed the demand and imposed penalty and ordered for recovery of....
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....s and Measures Act. He submits that, in an identical issue in respect of the very same issue the Division Bench of the Tribunal in CCE v. Sagar Cements Ltd. reported in 2005 (180) E.L.T. 196 has held in favour of the assessee and is squarely applicable in this case. He submits that they have filed an affidavit as regards the practice which is being carried out in their factory. 5. Considered the submissions made by both sides and perused the records. The finding of the learned Commissioner (Appeals) in this case are as under : - "8.1 I have gone through entire case records, written/oral submissions of both sides and the Hon'ble CESTAT's decision in the case of Oriental Carbon & Chemicals v. CCE Delhi. 8.2 In the case....
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....y that the difference between the automatically filled quantity and the one arrived on the weighbridge is 0.005% which is within Weight and Measurement Act/Rules. 8.5 Secondly, even if the little quantity is packed more, the duty being on ad valorum basis, the ratio of the CESTAT judgement in case of Reckitt & Colman of India Ltd. v. CCE, Calcutta - 1993 (44) ECR 33 (Tri) squarely apples to the facts of the case in as much as that there is no allegation much less evidence of receipt of any extra amount other than the one raised in invoice." It can be seen from the above reproduced portion that the learned Commissioner (Appeals) has come to a categorical finding that the cement bags when they were filled by automatic filing machin....
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....Sagar Cements (supra) will apply. I may read the ratio :- "We find that the lower appellate authority has clearly recorded that as per the provisions of the Standards of Weights and Measures Act, 1976 and the Rules made thereunder, a maximum permissible error of 2% is allowed in weighment of cement, whereas in the case of the goods in dispute, discrepancy was only 1% with reference to the total quantity of cement cleared during the period and by working out the variation as a percentage thereof . She has also noted that the difference between the tare weight and gross weight represents only 1% of the total quantity of cement cleared during the period in dispute by the appellants and that such variations may arise on account of variation ....