ORDER
Gowri Shankar, Member (T)
1. Both the appeals were taken up for hearing with the consent of both sides, after granting waiver of pre-deposit.
2. The issue involved in these appeals is, whether loss to the extent 10%, which the appellant claims occurs during the process of making forgings is admissible. In his order, the Commissioner has noted that this 10% stated to be burning loss caused by high temperature and subsequent hammering, was not shown in the Form IV register, which the appellant is required to maintain, and is not substantiated. He has ordered that loss of 3% is permissible and demanded duty on the rest.
3. The departmental representative contends that this loss of 10%, which is in addition to the loss of material (which has not been questioned) which occurs subsequent to making of forging before they become ready for marketing, is excessive and has not been substantiated by the appellants.
4. It is a settled law that before duty can be demanded on the goods stated to have been removed without payment of duty and entry in the record, such removal has to be established. In disallowing 7% loss, the Commissioner, in fact, says that this quantity has been used in the manufacture of forging and duty as such is payable. While lack of maintenance of proper records by the assessee may be separate point for proceeding investigation, that itself cannot be agitated removal without payment of duty. We noted that the Commissioner’s order is not a speaking order. This issue is covered by the decision in the case of Collector of Central Excise, Calcutta v. Multiwyn Industrial Corp. -1995 (80) E.L.T. 708 (Tribunal). We, therefore, remand the case back to the Commissioner for determining afresh to the extent of loss, if any, to be disallowed, and pass a speaking order according to law.