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2016 (8) TMI 932 - AT - Central ExciseDemand and imposition of penalties - Clandestine clearance of goods - shortages of final product detected by the officers at the time of their visit - documents recovered from the residential premises of one Shri Vinod Kumar Gupta relate to raw material received and dispatch of finished goods - Held that:- the Revenue has not produced any evidence or not has even alleged that there was enhancement in the production capacity subsequent to fixation of APC. In such a scenario, the rejection of the stand is on a flimsy ground. In the absence of capacity of production of such a huge quantity of goods, their clearance is virtually impossible. Where the production capacity was fixed by the Commissioner prior to the period in question and it is not the Revenue's stand that subsequent to the fixation of ACP, the appellants have added any further machinery in their factory so as to enhance their production capacity. The Chartered Accountant's certificate clearly establish that no capital expenditure stand made by the assessee subsequently. Even the assumptive observations made by Commissioner may lead to enhancement in the production capacity to a little extent but same cannot lead to enhancement of the capacity to such a huge quantum which is almost four times the capacity fixed by the Commissioner. In the present case the entire case of the Revenue is based upon uncorroborated unverified entries in the documents recovered from the premises of third person as also upon the statements of some of the concerned persons, which depositions are also not very clear leading one to believe that the appellant was indulging in clandestine activities. A cumulative reading of the statements leads us to believe that same stand given in the context of trading activity of the assessee. As the Revenue has miserably failed to establish the manufacture of such huge quantity of the appellants final product and has not adduced any positive and sufficient tangible evidence for the clearance of the final product from the appellants factory to the customer's premises, we find no justification to uphold the impugned order of Commissioner. Accordingly, confirmation of demand and imposition of penalty on M/s. CIL is set aside. Consequently, the penalties upon other appellants, who are Managing Directors or Directors of the said company, or the raw material supplier or the alleged buyers of their final product and other employees of the company are also set aside. - Decided in favour of appellant with consequential relief
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