ORDER
Gowri Shankar, Member (Technical)
1. The appeal is against the order of the Collector of Central Excise, confirming a demand for duty of Rs 1,89,335/- issued to the appellant on the ground of shortage of fabrics processed by it.
2. The stocks in the premises of the appellant were verified by the departmental officers from 6.2.1991 to 12.2.1991. It is on the basis of such stock verification that the shortage has been alleged. It is the contention of the counsel for the appellant that there was, in reality, no shortage. The officers wilfully and deliberately recorded shortages, which never existed. The letter dated 13.2.1991 of the director of the appellant to the Deputy Collector of Central Excise(Preventive) received by the latter on the same pay explains this. In reply to the show cause notice details payment of duty on the various loss of fabrics which were alleged to have been found short were communicated but has not been considered by the Collector. The incorrectness in the stock taking was brought to the notice of the officers but they refused to heed to the plea that the goods which they were recording as short in the panchanama were actually in the premises.
3. We are unable to accept this contention. The verification of the stock went on for seven days continuously. There is absolutely no material to support the contention that the plea for reverification of the stock was not considered. On the contrary the panchanama dated 10 & 11.2.1991 itself records the request made by Harish Parekh, Kamlesh Shah and thereafter the director Gangashankar Jaishankar Sharma with regard to verification and goes on to say that the director and the company representative “admitted the inability to locate any such fabrics which were shown as shortage and in Annexure ‘A’ to panchanama.” The fact that the appellant refused to sign the panchanama is not material. There is no requirement in law that the person from whose possession the goods were seized must sign the panchanama. If that were so, legitimate proceedings would often be frustrated, the person refusing to sign the panchanama when it goes against him.
4. There is no dispute that the panchanama showing the shortage was signed by two independent witnesses. It also cannot be disputed that the reply to the show cause notice does not cast doubts on their independence. No specific request was made for their cross examination. A sentence in the reply to the notice to the effect that the appellant “reserves the right to cross examine the witnesses and the officers” is far short of specific request for cross examination. it is significant that no such grievance was pointed out to the Collector at the hearing which followed thereafter. It is not a ground in the appeal before us that the request for cross examination was not considered.
5. We do not attach mush significance to the letter which was delivered to the Deputy collector on the day after the stock taking concluded. That period gives enough time to replace the stock which was found to be short in the panchanama. We must not be understood as saying that this is what the appellant did. however, this possibility cannot be excluded. Therefore, any reverification which might have been done after the letter was written would not necessarily reflect the true state of affairs as they stood on 12.2.1991, when the stock taking concluded. There is a signal failure to explain why, during the seven days, when the verification went on, nothing was placed on record by the appellant (assuming that the officers in the premises did not listen to the appellant’s representative) to bring his claim to the notice of the superior officers of the department. The plea now taken is therefore entirely unacceptable. This being the case, any payment of duty that was made by the appellant subsequent to the panchanama would not relate to the goods which found short in it and therefore would have not bearing upon the demand for duty that the Collector has confirmed.
6. The appeal is dismissed.
