ORDER
Gowri Shankar, Member (T)
1. The respondent received consignments of viscose staple fibre from M/s. Grasim Industries Ltd. The manufacturer mentioned in the invoice, the gross weight and net weight of the fibre. Duty had been paid on the gross weight. It appears from the material before us, that the necessity to refers to a net weight arose because, the fibre is hygroscopic in nature and lost in weight due to loss of moisture, during storage after manufacture or in transit. The respondents took Modvat credit of the entire duty paid calculated on the gross weight. This was objected to by the department on the ground credit must be taken is on the net weight. Proceedings were initiated to recover this credit. In the order that followed, the Assistant Commissioner confirmed the demand for the credit taken on the quantity in excess of net weight. The assessee appealed from this order. Commissioner (Appeals) allowed the appeal, relying on the decision of the Tribunal in P.K.P.N. Spinning Mills v. Collector of Central Excise, Coimbatore -1997 (89) E.L.T. 588 (Tribunal). Hence this appeal.
2. The appeal seeks to distinguish the Tribunals decision on the ground of differences in the facts. It says that, on a plain reading of Sub-rule (2) of Rule 57G, it is evident that credit is available on input which have been received in the factory. These contentions were reiterated by departmental representative.
3. The ratio of the decision of the (sic) relied upon by the Tribunal decision Commissioner was that, when duty had been paid by the manufacturer of fibre on a particular quantity, but the quantity on receipt at the users factory was found to be less, apparently on account of loss and moisture during transit, credit would be available of the duty paid, and would not limited to the quantity actually received. The Tribunal emphasised such facts at the goods being on original packing, in support of its view that the loss was not due to any deliberate theft or pilferage, but due to evaporation of moisture. In the present case, for the difference in weight is on account of loss in moisture. There is no contention that the shortage in weight was due to any other factor, such as pilferage theft. The ratio of the Tribunal decision would therefore squarely apply.
4. It may be true that the quantity of goods that was received by the respondent was a little less than the quantity on which duty was paid, but this is not on account of any deliberate act or omission on the part of the manufacturer or recipient. Nor is there any contention that the value of the goods, or their length has diminished. It is only because the duty was on the weight of the yarn at the issue has arisen. A large number of commodities are hygroscopic. They gain or lose weight, by absorbing or giving up moisture. While in this case, the difference in weight due to loss or gain may be more pronounced, it happeneds to a lesser or greater, extent in a large number of case. To insist that payment of duty and taking of credit should be regulated according to the weight of commodity on a particular date would result in a great degree of inconvenience and difficulty both, to the department and assessee. it would not be unreasonable to say that, in the long run, such gains and losses of weight of commodity would cancel each other and, thus would not have any effect on the Revenue. As long as it is established that gain or loss was really due to adsorption or evaporation of moisture, and in accordance with the non-accepted standard for such gain or loss in any industry, we do not think that the rule should be applied absolutely right as has been sought to be done in the present case.
6. We, therefore, decline to interfere. Appeal dismissed.