TMI Blog2004 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Central Excise Officers visited the factory premises of the appellants on 10-10-1998. During the scrutiny of the records, the officers came across certain private documents maintained in the factory. After investigation, the Department came to the conclusion that the appellant had not accounted for a quantity of 41,777 kgs. of raw tobacco procured by them. It was alleged that out of the unaccounted raw tobacco, a quantity of 43,866 kgs. of cut tobacco was produced and cleared without payment of duty. The Revenue initiated proceedings against the appellant. The adjudicating authority confirmed a demand of Rs. 21,77,550/- towards duty and imposed equal penalty under Section 11AC. Interest under Section 11AB has also been demanded. Penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cut tobacco Showing 44,111 kgs of raw tobacco issued for Processing but accounted for only 22,083 kgs (Pages 17 to 38 of file 3/3) 22,028 (iii) Blend sheets for operation numbers WI-1 to WI-5 of WP blend cut tobacco dated from 25-9-1998 to 28-9-1998 not accounted for in RG-1. (Pages 101 to 105 of file 3/3) 9,865 (iv) Blend Sheets for HB and HC samples of cut tobacco (pages 90 and 91 of file 3/3) 300 Total Un-accounted raw tobacco Total cut tobacco manufactured (being 5% more than raw-tobacco issued) 41,777 43,866 Total Duty payable (@ Rs. 50/- per kg. of cut tobacco) Rs. 21,93,300/- 6. The learned Advocate and the Consultant, after taking us s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tity of 300 kgs. of raw tobacco, it was submitted that the same has been duly accounted in the RG-1 Register and instead of mentioning the quantity manufactured in the relevant column, the clerk in-charge has inadvertently shown it in the opening balance. The following case laws were relied on : 1. M/s. ITC Ltd., Bangalore v. CCE, Bangalore - Final Order No. 1215/2002 (CEGAT-Bangalore) dated 20-9-2002 - 2002 (149) E.L.T. 1116 (Tri. - Bang.) 2. VST Industries Ltd. v. CCE, Hyderabad - 2001 (138) E.L.T. 549 (Tri-Chennai) 3. Godfrey Philips India Ltd. v. Collector - 1995 (75) E.L.T. 619 (T) 4. CCE, Coimbatore v. Sangamitra Cotton Mills (P) Ltd. - 2004 (163) E.L.T. 472 (Tri - Chennai) 5. Sulara Chemicals Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges are based purely on a theoretical working out based on the private documents, which are not statutory. The Hon'ble CEGAT, in the case VST Industries Ltd. (cited supra), has held that the charges of clandestine removal cannot be based on assumptions and presumptions. In the Godfrey Philips case, the Tribunal has held that duty is not demandable on assumed productions. In the Sangamitra Cotton Mills case, it was held that in the absence of evidence of use of electricity, receipt of sale consideration to prove the event of manufacture and clearance of goods, clandestine removal cannot be sustained. In the Harinath Gupta case, it was held that the clandestine removal charge is not sustainable as the source of procurement of raw material ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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