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2018 (3) TMI 329 - AT - Central ExciseClandestine removal - M.S. Ingots/risers - CENVAT credit disallowed on alleged shortage of Sponge Iron at the time of physical verification - penalty - Held that: - it is evident on the face of record that the alleged shortage of Sponge Iron (raw material) is a matter of wild guess based on eye estimation. There is no calculation sheet or weighment detail on record and/or annexed with the panchnama. As such I hold that the allegation of shortage of raw material/sponge iron is not sustainable. As regards alleged clandestine clearance of ingots is concerned, I find that the allegation of revenue is based mainly on the initial admission of Shri Kulbhushan Jain and further admission of Shri Sanjay Agarwal Director of VVS Alloys Ltd. and Deepak Handa, director of M/s Sarda Steel Ltd. It is found that the statements of these persons are not admissible, as evidence, under provisions of Section 9D of the Act, as the adjudicating authority have failed to examine these persons in the course of the adjudication proceedings nor offered its witness for cross examination, more so inspite of application made by the appellants for the same. Suspicions howsoever strong cannot form evidence for confirming allegation of clandestine removal - The allegation of clandestine production and removal is not established - appeal allowed - decided in favor of appellant.
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