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2015 (6) TMI 373 - AT - Central ExciseDuty demand - Clandestine removal of goods - Held that:- Entries regarding despatches of Saria II in the daily receipt and despatches sheets recovered from the factory premises have to be treated as clearances of TMT bars only as the price of Saria I and Saria II is same, while TMT Bar is much costlier that the CTD bar and, therefore, the appellants claim that Saria II despatches are the sales of CTD bar by M/s Meenakshi Steel made from the appellants factory is difficult to accept. Moreover both Shri Ghasi Lal Sharma and Shri Murari Lal Sharma in their statements given over a period of one year and which have not been retracted, have stated that the documents recovered from the factory pertain to the finished goods cleared from the factory. If this is so, their claim that despatches of Saria II from the factory are the sales of CTD bars made from the factory which has been purchased from the outside is difficult to accept, more so, as no intimation had been given by the appellant company to the Jurisdictional Central Excise Authorities regarding receipt of duty paid CTD bars from outside and their sale from the factory. Appellants plea made long after the issue of show cause notice and even the after conclusion of the personal hearing that the despatches of Saria II, as reflected in the daily receipt and despatch sheets recovered from the factory, are the sales of CTD bars made by a group trading concern M/s Meenakshi Steel cannot be accepted. In view of this, we hold that the duty demand of ₹ 7,22,15,192/- based on the Chart A, B, C and D, which, in turn, have been prepared on the basis of daily receipt and despatch sheets and delivery orders recovered from the factory premises has to be upheld. During the period from 10/09/05 to 01/10/05 the appellant company received certain quantity of MS Ingots from Nirmal Inductomelts Pvt. Ltd. without any accountal which has obviously been used for manufacture of TMT bars and after taking into account 8% burning loss, the bars estimated to have been manufactured are 202.888 MT on which the duty liability is ₹ 6,77,061/-. In view of this, we hold that duty demand of ₹ 6,77,061/- has also to be upheld. Merely on the basis of power consumption norm which has not been determined by actual experiment, duty demand against an assessee cannot be confirmed when there is no corroboration experiment regarding receipt of unaccounted experiment and despatch of finished product. In view of this, we hold that the duty demand of ₹ 16,38,63,265/- is not sustainable and has to be set aside. - Penalty imposed on assessee company is reduced - Decided partly in favour of assessee.
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