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2016 (4) TMI 56 - AT - Central ExciseClandestine clearance - goods cleared twice - unaccounted acquisition/procurement of inputs - Held that:- Revenue is based on only statement of the proprietors of company, two buyers namely, Jay Enterprises and Krishna Marketing which were subsequently retracted and the stand have been consistently maintained by them in the course of cross-examination to the effect that they have neither received any non-duty paid goods nor they were instructed by the officers of the manufacturer to return invoices/documents. The appellant admitted that there are only 8 invoices available in the relied upon documents, against which it appears that the goods have been cleared twice. The appellant have clearly agreed to confirmation of demand attributable to all these 8 invoices, the clearance value of which totals ₹ 7,31,140,17 along with interest. It is further seen from the record that other than the 8 invoices, there is no evidence produced by the Revenue in support of the allegation of clandestine removal as alleged on the basis of parallel invoices. It is settled law that clandestine clearance as alleged by Revenue, the onus is on the Revenue to produce copies of the invoices etc. in support of its allegation. In the absence of such parallel invoices, the allegation cannot survive. Further, find that the Revenue have not brought anything on record to support any unaccounted acquisition/procurement of inputs(raw materials). Rather the inputs of the appellant are acquired from the PSU and the same are duly accounted for and duty paid. Thus, it appears that the Revenue have made out a half baked case of clandestine removal and the same is not sufficient save and except the 8 parallel invoices as noticed herein above and accepted by the appellant. Further, it is settled law that a confessional statement cannot be the sole basis for establishing clandestine clearance in absence of other corroborative evidence. The duty on the value of clandestine clearance of ₹ 7,31,140.17 have been worked out by the Revenue on the direction of the Tribunal @ ₹ 92,144/-. Accordingly, the balance demand is set aside. The appellant is accordingly ordered to pay the above amount along with interest, which can be adjusted against the amount of pre-deposit of ₹ 20 lakhs and additional amount of ₹ 5 lakhs, lying with the department against encashment of Bank Guarantee. Further, equal amount of penalty of ₹ 92,144/- is retained against the appellant ICCONOL Petroleum Products under Section 11AC read with Rule 25 of Central Excise Rules, 2002. The personal penalty imposed on the Managing Director Mr. Tushar Shah and Mr. D.K. Singh, Director of the appellant under Rule 26 of Central Excise Rules are reduced to ₹ 15,000/- each. The penalties under Rule 26 on Krishan Marketing, Blue Spot Agencies and Jay Enterprises are set aside. The confiscation of the goods valued at ₹ 2,35,650/- at the premises of Krishna Marketing is also set aside. - Decided partly in favour of assessee
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