4.Whether Order Is To Be Circulated To ... vs Cce, Kanpur on 20 April, 2010
2.1 Sh. Rajesh Jain, Advocate, learned Counsel for the Appellant company pleaded that the Panchnama does not mention as to how the stock of the cartons was ascertained, that the stock had been ascertained on eye estimation, though this fact is not mentioned in the Panchnama, that even though stock verification had been done in the presence of Sh. Azad Poddar, Authorised Signatory of the Appellant company and Panchnama does not mention as to whether he had objected to the method of determining the stock, this does not mean that the mistake in determining the stock of the finished goods cannot be pointed out subsequently; that there was no actual shortage of the finished good, that no enquiry was made with the Directors of the Appellant company; that no enquiry has been made with the customers of the Appellant company; that the shortage alleged on the basis of eye estimation is not actual shortage; that in this regard he relies upon the judgment of the Tribunal in the cases of Agarwal Foundaries vs CCE, Hyderabad reported in 2007(207)ELT.278, Geekay Wires Pvt. Ltd. vs CCE, Hyderabad reported in 2006(200)ELT.86, Hans Metals Pvt. Ltd. vs CCE, Kanpur reported in 2006(199)ELT.521 and Aar Kay Industries vs CCE, Chandigarh reported in 2004(165)ELT.412; that in absence of any enquiry having been made with the customers, duty demand on the alleged shortage by treating the same as clandestine removal is not sustainable and in this regard, he relies upon the judgement of the Tribunal in the case of CCE, Ahmedabad vs Vivek Dyechem Inds. Pvt. Ltd. reported in 2002(150)ELT.801 and that just on the basis of shortage of finished goods and in absence of evidence of clandestine removal cannot be presumed that the goods found short had been clandestinely removed, and that in any case, there is no justification for imposition of penalty on the Appellant under Section 11AC.