2019 (8) TMI 958 - CESTAT AHMEDABAD

Clandestine Removal - basis of demand is the data contained in pen drive - Also it is alleged that the Partner accepted the removal of goods - variation in electricity consumption - HELD THAT:- At the time of the visit of the officers, no discrepancy in raw material or finished goods were found. There is no evidence of any excess raw material purchased by the Appellant and the correlation of production and clearance is not appearing with such procurement of raw material. The statements of Partners though relied upon, but only on the basis of such statements, the charges of clandestine removal cannot be substantiated unless supported by corroborative evidences. Moreover, such statements were recorded on the basis of production note book, diaries but since the demand is not based on pen drive data as computation was done only on the basis of pen drive data that too containing intermediate product casting, the statements are of no help to revenue.

The Revenue could not produce any evidence regarding variation in consumption of electricity nor there is any allegation of disproportionate consumption of electricity - This Tribunal in case of AUM ALUMINUM PVT. LTD. VERSUS COMMISSIONER OF C. EX., VADODARA [2012 (4) TMI 557 - CESTAT AHMEDABAD] held that when there is no evidence of clandestine manufacture, clandestine/dis-apropriate/unaccounted purchase/receipt and consumption of raw material and packing material, required for manufacturing alleged quantity of final product clandestinely removed from the factory. The freight payment for any such movement, un authorized payment for procuring unaccounted raw material and packing material, disproportionate power consumption, capacity utilization and labour employed, unaccounted sales proceeds in substantial cash from factory or other premises or any other else in direct control of assesses, backed by any confirmation oral or written from person giving such cash against goods removed in clandestine manner without payment of duty from the factory, there cannot be case of clandestine removal.

In the present case also all the above element are absent as the investigating agency could not established the excess production, excess raw material purchase, payment there against, receipt of sale proceeds against such huge alleged quantity of clandestine removal of goods, therefore, the demand merely based on data retrieved from pen drive cannot be sustained.

The department has taken the quantity of casting from the pen drive, however, the clandestine removal of casting was neither alleged not established. The pen drive data contained the quantity of job work goods carried out by the appellant which is otherwise not liable to duty but department has not bothered to verify the same despite a categorical submission made by the appellant before the lower authority. It is also fact that appellant could not have been produced such huge quantity during the relevant period.

Penalty on partners - HELD THAT:- When demand itself not sustainable, penalties are also not maintainable - Moreover, as of now, it is settled law in the judgments of Jurisdiction High Court in case of PRAVIN N. SHAH VERSUS CESTAT [2012 (7) TMI 850 - GUJARAT HIGH COURT] and COMMISSIONER OF CENTRAL EXCISE VERSUS JAI PRAKASH MOTWANI [2009 (1) TMI 501 - GUJARAT HIGH COURT] that in case of partnership concern, a separate penalty on partners cannot be imposed.

The demand and penalties imposed by the impugned order against the Appellant unit is not sustainable - appeal allowed - decided in favor of appellant.