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2017 (12) TMI 766 - AT - Central ExciseClandestine removal - it was alleged in the show-cause notice that total quantity of 3440.500 MT ingots was clandestinely cleared - Held that: - It is settled position of law that quantification of alleged clandestine clearance only on the basis of theoretical estimation of production cannot be sustained in the case of R A Castings Pvt. Ltd. vs. Commissioner [2015 (7) TMI 29 - CESTAT NEW DELHI]. The Tribunal observed that duty demand made on basis of theoretical calculations of production is not sustainable. The main evidence on the basis of which the adjudicating authority has upheld the duty demand of ₹ 7,52,843/- is the private documents in the form of scribbling pads recovered from the factory premises of the assessee. Such scribbling pads are said to contain the details of the goods removed without payment of duty by the assessee - The invoice number, quantities and date pertaining to invoice No.181 tallied in respect of the entries found in scribbling pads, gate register as well as regenerated invoices. This clearly establishes the charge of removal of ingots without payment of duty and confirms the practice of multiple transportation under the same invoice. Cross-examination of witnesses - Held that: - We find that only one of the statements recorded from Shri Jawahar has been retracted subsequent to the date of recording. However, Shri Jawahar has confirmed the facts in his subsequent statements nullifying the retraction. In the absence of retraction by any of the other witnesses, the denial of cross-examination does not vitiate the proceedings. The adjudicating authority has confirmed the demand of duty of about Rs. ₹ 7,52,843/- on the basis of documents recovered from such proceedings and whose veracity has been proved from the corroborative evidences like regenerated invoice and gate register evidencing the clandestine removal of the ingots by the assessee - demand upheld. Penalty u/r 26 of CER, 2002 on Shri Paramasivam, Managing Director - Held that: - Shri Paramasivam, Managing Director has admitted the clearance of excisable goods without payment of duty as is evident from his letter dated 29.7.2003 admitting the duty liability. He has concerned himself with the production and removal of excisable goods which were liable to confiscation - penalty upheld. Appeal dismissed - decided against appellant.
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