Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2015 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (1) TMI 941 - AT - Central ExciseClandestine Removal - Goods not accounted in RG-1 Register - Held that:- Admittedly the entire case has been made out on the basis of loose papers resumed from the factory premises of the Appellants. The Appellants have contended that the documents do not bear the name of factory and it is not written that commodity packed in bags was cement. I have perused these loose slips and found that the said slips carry neither the name of Company nor the description of goods. No doubt these slips have been resumed from the factory premises of the Appellants but that is not sufficient to establish the charge of clandestine manufacture and clearance of goods. I find that many names had been mentioned in the said loose slips. However, statement of none of these persons had been brought on record to establish the fact that the said slips pertained to the Appellants and reflected the transactions in bags of cement effected by both Appellants 1 and 2. It is well settled that the charge of clandestine manufacture and clearance of goods is a very serious charges and is required to be proved beyond doubt. It has been held by Courts and the Tribunal that suspicion however strong cannot be a substitute for evidence. Department has not adduced any corroborative evidence to support the charge of clandestine manufacture and removal of goods. The Adjudicating authority has drawn inferences from the recovery of the slips without any independent material that since the slips had been recovered from the factory premises, these relate to cement bags only. The presumption made by the learned Commissioner is not supported by any independent material on record. It has been mentioned in the impugned Order that the sheets were signed by workers of the factory. However, there is no statement of any workers on record to establish the said fact. - Adjudicating authority has himself mentioned in the impugned Order that there are references of truck nos. in the sheets and the investigation with respect to the truck owners/drivers would have been relevant. It is felt that as the investigation has not been conducted from the truck owners/drivers, the said sheets do not establish conclusively that the Appellants had manufactured and removed alleged bags of cement clandestinely. The Adjudicating authority has presumed without any basis that the statements of the truck owners/drivers would have had a corroborative value for the Department s case and not the Assessee. This presumption could not replace evidence to properly corroborate the clandestine activity. It is settled legal position that the demand cannot be worked on the basis of mere meter readings or power consumption. The demand has been computed on the basis of formula of 45 bags production per unit consumption of power. I find that there is no reference in the impugned show cause notice and the Adjudication Order about any specific study undertaken in this regard. No technical basis of such calculation has been arrived at. The charge of clandestine activities is required to be corroborated by production of independent evidences. In the present case, no evidence is record to show the receipt of raw materials and removal of finished goods and details of transportation with truck numbers. - clandestine manufacture and clearance of cement based on generator reading have not been uphold. Penalty is imposed on Mr. B.P. Aggarwal, partner of M/s. Portland Chemicals and Mr. S.P. Aggarwal, Director of the Portland Cement (India) Limited and partner of M/s. Portland Chemical are set aside. - Decided Partly in favour of assessee.
|