JUDGMENT
P.S. Bajaj, Member (J)
1. This appeal has been preferred by the appellants against the impugned Order-in-Appeal dt. 1.2.2002 passed by the Commissioner (Appeals) vide which he had confirmed the order-in-original dt. 27.3.2000 of the Addl. Commissioner.
2. The appellants are engaged in the manufacture of cotton yarn and man made yarn. Their unit was visited by the Central Excise Preventive Officers, from 25th January to 27 January 1999. On checking, they detected excess stock of 16.791 MT of polyester/viscose fibre and shortage of 25.283 MT of acrylic fibre and nylon. The excess stock was seized. After giving show-cause notice to the appellants, the adjudicating authority ordered confiscation of seized goods but gave option to the appellants to get the same redeemed on payment of redemption fine of Rs. 1.5 lakhs and further confirmed the demand of Rs. 3,35,244.98 involved on the goods found short. The adjudicating authority also imposed penalty of Rs. 50,000 under Rules 571 and 173Q. This order was passed by the adjudicating authority on 27.3.2000 and the Commissioner (Appeals) had affirmed that order.
3. I have heard both sides.
4. The perusal of the records shows that at the time of checking, some stock of the goods was found lying in loose form and some in bales form. No weighment of the bales or of the loose stock, was conducted and only on the visual examination of the stock, the quantity of excess and short stock had been arrived at. The Modvat credit had been disallowed and penalties has been imposed by the authorities below, simply on the ground that the employee who claimed himself to be the Vice-President of the appellant-company, was present at the time when the examination of the stock was done and he showed his satisfaction with the same by making statement to that effect. But his statement did not find corroboration from any other tangible and cogent evidence. In the absence of actual weighment of the stock of the goods lying in loose and as well as in bales forms, the quantity of the excess or the shortage of the stock could not be arrived at. The Commissioner (Appeals) has not disputed that the bales and bags were counted and average weight was worked out but such a method could not be adopted for taking penal action against the appellants and for disallowing credit to them.
5. In an identical case Dhebar Steel Re-Rollers v. CCE, Raipur, 2002 (142) ELT 194 where the penalty was imposed and goods were seized on detection of excess and shortage of the goods by visual examination, the Tribunal set aside the order of the Commissioner (Appeals) by holding that without actual weighment, neither the duty demand could be confirmed nor the penalty could be imposed on the assessee.
6. In view of discussion made above, the impugned order of the Commissioner (Appeals) is set aside. The appeal of the appellants is allowed with consequential relief, if any permissible under the law.