TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 613
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....order as they arise out of the same impugned order passed by the authorities below and out of the same set of facts and circumstances. 2. As per facts on record the appellant M/s.DVS Steels & Alloys Ltd. are engaged in the manufacture of MS ingots falling under chapter 72 of Central Excise Tariff Act, 1985. Their factory was visited by the Central Excise Officer on 30.09.2009, who conducted various checks and verifications. The stock-taking of the finished goods as also the raw materials resulted in shortages to the extent of 1729.245 MT of MS ingots and 528.925 MT of inputs. Statement of Shri Ankur Agarwal, Director of the firm was recorded wherein he accepted such shorgages, but could not give any plausible explanation as regards the dis....
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....ed order of Commissioner(Appeals), vide which he has set aside the duty confirmation along with penalty in respect of the demand relatable to shortage of inputs and has also set aside penalty of Rs. 3.00 Lakhs on the Director. 5. The Revenue's appeals are against setting aside the duty confirmation in respect of shortages of raw materials detected by the visiting officers on the date of their visit to the assessee's premises. For better appreciation of the reasons for setting aside demand, adopted by Commissioner(Appeals), the relevant paragraph from the impugned order is reproduced below:- "The issue relates to the levy of duty & the imposition of the penalty on account of th ealleged shortage in stock of finished goods and raw material....
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....rs i.e. the alleged shortage in stock as arrived by them were not actual, but based on the said estimated weighment. I find that a similar issue of demnad of duty on the alleged shortage in stock of the goods arrived at on the basis of average or estimated weighment arose in the case of (A) K.L. Steels Ltd. V/s CCE, Meerut, 1998 (100) ELT 406(Tri.)(B) Micro Forge (I) Pvt.Ltd. V/s CCE, 2004 (169) ELT 251 (Tri.)(C) Satpushp Steels (P) Ltd. V/s CCE, 1994 (72) ELT 585 (Tri.) and in all these cases, the Hon'ble Tribunal held that shortage arrived at on the basis of such average/estimated weighment and demnad of duty on that count is not sustainable. In the above context, the Hon'ble CESTAT's judgement in the case of Nilesh Steel & Alloys (P) Ltd....
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.... on the above issue of the alleged shortage in stock of the goods (raw material) arrived at on the basis of the estimated weighment. In view of the above discussion & findings, I find no merit in the impugned Order-in-Original in so far as it relates to the confirmation & appropriation of the demand of duty of Rs. 10,42,553/- in respect of the alleged shortage in the stock of the inputs and hence the same is set aside." 6. As is seen from above the appellate authority has come to a categorical finding that the weighment of the raw materials was done on eye estimation basis and there was not actual weighment carried out by the visiting officers. As such by relying upon various decisions of the Tribunal he has observed that shortages determ....
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....avy material required weighment by a weigh-bridge and there is nothing to suggest about the method adopted by the officers for the weighment of the ingots in question. We really fail to understand as to why two different and contra conclusions stand drawn by the appellate authority in respect of raw material and finished products. 9. In any case and in any view of the matter we find that apart from the alleged shortages, even if considered to be correct reflection of facts, there is no other evidence on record to corroborate the charges of clandestine removal and clearance of the final product. It is well-settled law that such charges are required to be established by production of positive and tangible evidence and the onus to discharge t....