ORDER
M.V. Ravindran, Member (J)
1. These three appeals are directed against Order-in-appeal dated 24.01.2005, which upholds the order-in-original that confirmed the demand and imposed penalty on all the appellants.
2. Considered the submissions made by both sides and perused the record. It is the contention of the learned advocate that the demand has been worked out on the basis of presumptive ground of the stock of raw material to be present in the factory on the date of visit. He drew my attention to the show cause notice and table under Para 3.
3. On perusal of the table mentioned in Para 3, I find that the Revenue has confirmed the demand based on the presumptive shortages of raw material worked out on the basis of presumptive physical stock to the existent stock and worked out shortages for demand of duty. Physical stocks of inputs, work in process and finished goods tallied with the recorded balances. It is settled law that the demand cannot be worked out on the basis of presumption. The reliance placed by the learned advocate on the Division Bench decision in the case of M/s Govind Rubber Ltd. v. CCE, Jaipur-I at 2005(192) E.L.T. 775 (Tri-Del) is apt and correct. I read the specific findings:
It is not disputed by the Revenue that the shortage of nylon tyre cord fabric has been arrived at on the basis of consumption vis-a-vis standard input output ratio. There is no material or evidence, which has been brought on record, to show that the said raw-material was cleared from the factory without payment of duty or reversing the Modvat credit already availed by them. There is substantial force in the submissions of the learned Advocate that the standard input output norms can be applied only in perfect conditions and not otherwise. In a similar situation in the case of Magnum Papers Ltd. (supra), the Tribunal did not agree with the Department that Modvat credit is deniable on the basis of comparison of the consumption of the raw-material during the current year and the preceding year. In the present matter also, the shortage of nylon tyre cord fabric has been only presumed on the basis of applying input output ratio and not on the basis of actual consumption. We, therefore, set aside the demand in respect of nylon tyre cord fabric.
4. It can be seen that the ratio of the Division Bench in the case of M/s Govind Rubber Ltd., squarely covers the issue in this appeal. In view of this, the demand of duty worked out on the appellant company is liable to be set aside and I do so. Since the demand of duty has been set aside, the question of imposition of consequential penalty does not arise.
5. Respectfully following the decision of Division Bench, all the three appeals are allowed with consequential relief, if any.
(Pronounced in Court)