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2016 (4) TMI 605 - AT - Central ExciseClandestine removal - lack of investigation - whether the main appellant has indulged in clandestine manufacture and clearances of finished goods? - whether revenue is able to make out a case of clandestine removal and whether penalties are to be imposed on the appellants? - Held that:- The position with regard to the demand which is based on the copies of Truck Destination Register maintained by another transporter, namely M/s Akola Goods Transporter, Chandrapur, is no different. Here again, no investigation seems to have been conducted at the end of the alleged consignees whose name appear in the said Truck Destination Register. The actual receipt of the goods by the consignees is thus not established. No investigation was undertaken to bring on record the author of the said truck destination register. The said statement of Mr. Shakheel Khan shows that M/s Akola Transport Co was only acting as a commission agent and were merely arranging for transportation rather than actually transporting the goods themselves in their own trucks. No investigations have been conducted with the actual transporters engaged by M/s Akola Transport Co. The Books of Account of M/s Akola Transport Co have also not been examined to find out the names of the actual transporters. In any case it is settled law laid down by the Hon'ble High Court of Patna in CCE v. Brims Products (2008 (9) TMI 603 - PATNA HIGH COURT ), that allegation of clandestine removal cannot be sustained based merely on transporters records which are not corroborated by any other evidence. Even in regard to the smaller demand of ₹ 10.58 lakhs based on the alleged shortage of raw materials/finished goods, the explanation given by the appellant on the very next day of the Panchnama wherein the shortages were disputed have not been countered or dealt with in the notice. Further the Panchnama as clearly record that the stock positions have been worked out based on theoretical calculations by assuming the length, breadth, width of the raw materials/finished goods. Such theoretical calculations cannot be the basis for foisting demand on account of shortages. In short, the investigation has failed to establish the case of clandestine removal. - Decided in favour of assessee
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