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2016 (9) TMI 1016 - AT - Central ExciseSuppressed production of clandestine clearances of goods without payment of duty - approximation production considering average yield of the product viz. zinc oxide out of the raw material issued - department has not gone beyond the approximation of yield shown as 70 to 84% - average yield overall had been shown as 77.60%. - Demand alongwith interest and imposition of penalty. Held that:- there is nothing on record from the Revenue side to come to a reasonable conclusion to say that there has been preponderance of probability of such suppressed production on the part of the appellant. The evidences in the form of approximation and averaging production as 77.6% and one statement of Shri Agarwal, Director of the appellant company cannot be called a prudent conclusion of the production estimate. Therefore, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon’ble Allahabad High Court’s decision in the case of Continental Cement Company Vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] and Supreme Court’s decision in the case of Oudh Sugar Mills Ltd. Vs. Union of India [1962 (3) TMI 75 - SUPREME COURT OF INDIA] and CESTAT’s in the case of Punalur Paper Mills Ltd. Vs. CCE [2008 (8) TMI 471 - CESTAT, BANGALORE]. In view of the above, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of ₹ 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. Demand - inputs short found - duty deposited by the assessee-appellant and was appropriated to the Government account by the impugned order - Held that:- there has not been any submissions by the appellants. Therefore, this part of the order confirming the said duty does not warrant any intervention from this Tribunal. It is hereby sustained. - Appeals disposed of
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