TaxTMI 
TaxTMI 
2022 (7) TMI 1178
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....ice Tax Appellate Tribunal, Regional Bench, II, Kolkata (Tribunal) in order No. FO/A/7593 of 2019. The revenue has raised the following substantial questions of law for consideration :- "1. Whether in the de novo proceedings, the learned tribunal has followed the direction of the Hon'ble High Court, as given by the order dated 20th February, 2019, in its true sense as regards to the points that what was the stock notionally determined and actually determined by the respondent - assessee and how it was adjusted in their accounts without being reflected in the Central Excise records ? 2. Whether the learned tribunal, being the last fact finding authority, has rightly followed the direction of the Hon'ble High Court, as gi....
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....ing reflected in the Central Excise record" were not explained in the order of the Tribunal dated 13th March, 2019. Therefore, the matter was remanded to examine as to whether the facts were identical as that of the earlier decision. Pursuant to such order of remand the Tribunal took up the matter for de novo consideration and on going through the order passed by the Tribunal we find an elaborate exercise has been done by the Tribunal to compare the facts of the decision rendered by the Tribunal earlier with that of the facts of the case on hand and after taking into consideration the facts, the Tribunal opined that they are identical. More importantly, the assessee had filed a reconciliation statement for the period in dispute which was....
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....ndonable losses observed during annual stock taking is fixed - i) Tariff Item 26AA - 1% ii) Tariff Item 26 - 1% iii) Tariff Item 25 a) Pig Iron - 2% b) Iron in any crude form - 25% The above percentage should be used as a guideline and while deciding cases the investigation reports of the Plant authority referred to above should also be taken into account. 4. All pending cases of stock taking losses may be adjudicated quickly in the light of these instructions." In terms of the above Circular, the condonation of losses for pig iron have been fixed at 2% and for the iron in any crude form at 25% and with regard to tariff item 26AA and 26, it was fixed at 1%. The assessee had f....
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....ding duty and imposition of heavy penalty is not at all warranted. In any case, the invocation of the longer period is not justified. We cannot say that one of the largest public sector undertakings Rashtriya Ispat Nigam is doing all these things with an intention to evade payment of duty. Further, this Bench had occasion to deal with similar issues in the following cases : (a) Steel Authority of India Ltd. v. CCE. Mysore - 2006 (200) ELT 229 (Tri.-Bang.) where a similar situation was examined and it was decided that the shortage is inflated due to errors in taking opening balance and a physical stock. It is also held that considering the practical difficulties in estimating the actual stock and in view of the submissions made by t....
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.... only marginal should have been given its due consideration. The Tribunal in the case of M/s. Micro Forge (I) Pvt. Ltd. v. CCE, Rajkot reported in 2004 (169) E.L.T. 251(T) has held that when the stock position is arrived at on the basis of estimation, the allegation of shortage of stock and consequent illicit removal of finished goods cannot be sustained. A plethora of case laws hold that provisions of Section 11A would apply in making demands of duty on deficiencies found during stock taking. The appellants based many reasons for discrepancies between the RG-1 and the physical stock. For example, RG-1 is only based on estimated production and not based on actual weighment. Physical stock is also based on estimation of weight on the basis o....
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...., 2001 (137) E.L.T 566 (Tri. - Kolkata), wherein the adjudication was identical to that of the adjudication in the case on hand and the appeal filed by the SAIL was allowed. The said decision has attained finality. That apart, we note that in the case of Steel Authority of India Ltd. vs. Commissioner of Central Excise, Mysore, 2006 (200) E.L.T. 229 (Tri. - Bang.), which decision was followed by the Tribunal, pertains to the case of the assessee in respect of their unit at Mysore and the said decision has attained finality. It is not shown to us that the Department has preferred any appeal against the said decision. Therefore, the Department is bound to adopt consistent approach in the matter. Further, we are surprised to note that the pe....