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TMI Blog2018 (4) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on record to reflect upon the clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands. The entire case of the Revenue is based upon the shortages detected at the time of visit of the officers, without there being any other evidence, there is no reason to uphold the same. Demand of ₹ 73,179/- based upon the photocopies of two invoices - Held that: - The names of the buyers were available with the Revenue but neither any investigation was conducted at their end or at the end of the raw materials supplier - inculpatory statement by itself is not sufficient without the matters having been further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 38,934/- on the basis of a diary, which contains one entry showing Cash Sale, 300 kg., Aditya Metacom @ ₹ 1,050/- ; (v) Demand of Service Tax of ₹ 61,199/- on the ground that the appellant availed the GTA services but not paid tax as service recipient. 2. Accordingly, show cause notice dated 30/04/2014 was issued to the appellant for the period 2009-2010 to 2012-2013, which was confirmed by the learned Adjudicating Authority vide order dated 29/01/2016 and upheld by the learned Commissioner (Appeals) vide impugned order dated 10/05/2017. 3. After hearing both the sides, I find that demand of ₹ 37,60,496/- is based upon the documents recovered from the premises of one transporters and arriving at a finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are number of decisions laying down that the findings of clandestine removal cannot be upheld on the basis of the documents recovered from third party premises. Reference can be made to Tribunal s decision in the case of Raipur Forging Pvt. Ltd. vs. P.D. Industries Pvt. Ltd. reported as 2016 (335) E.L.T. 297 (Tri. Del.), CCE ST, Raipur vs. P.D. Industries Pvt. Ltd. reported as 2016 (340) E.L.T. 249 (Tri. Del.) and also Hon ble Punjab Haryana High Court decision in the case of CCE ST, Ludhiana vs. Anand Founders Engineers reported as 2016 (331) E.L.T. 340 (P H). 5. In view of the foregoing, I find no justifiable reason to uphold the said demand. The same is accordingly set aside alongwith setting aside of penalty on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Minakshi Castings reported as 2011 (274) E.L.T. 180 (Allahabad) as also the Hon ble Punjab Haryana High Court in the case of CCE, Ludhiana vs. Nexo Products (India) reported as 2015 (325) E.L.T. 106 (P H) and to another decision of the Hon ble Punjab Haryana High Court in the case of CCE ST, Ludhiana vs. Anand Founders Engineers reported as 2016 (331) E.L.T. 340 (P H). Its stand held on the above decisions that the clandestine removal charges based on shortages in stock cannot be upheld in the absence of any other evidence brought on record by the Revenue showing such illegal activities on the part of an assessee. The said decisions stand followed by the Tribunal in many numbers of cases. In as much as in the present case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x payable by the appellant on the GTA services, so received by them. The appellant have admitted the service tax to the tune of ₹ 28,690/- and in respect of the balance amount have submitted that the transporters have themselves discharged the service tax liability. However, it is seen that the said contention of the appellant has not been established by production of sufficient evidences. Learned Advocate submits that whatever service tax was payable by them on the said GTA services, the same was available as a credit to them. As such, the entire situation was revenue neutral, in which case the longer period of limitation would not apply. In as much as the demand has been raised by invoking the extended period, the same is barred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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