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2018 (4) TMI 291 - AT - Central ExciseClandestine removal - clearance of goods under the fake parallel invoices - customers found non-existent and addresses of customers found to be fake - Held that: - The said factors discharged the initial onus placed upon the Revenue and it is now for the appellant to establish that the goods were not removed under the cover of said invoices. No documentary evidence has been produced by them to show the cancellation of the purchase orders by the customers. In fact their authorised representative has admitted such clearances along with the admission of receipt of goods by the buyers - demand upheld. Demand of duty on the basis of variation and quantity in the invoice and the packing list - Held that: - the demand on the said ground stands confirmed only on the basis of difference in the invoice weight and the packing list weight, without there being any other evidence of clandestine manufacture of excess goods and their clearances - Though, such factory may raise doubt against the appellant but cannot take place of evidence so as to confirm the demand - demand set aside. Demand of ₹ 95,345/- based on alleged excess consumption of aluminium scrap which according to Revenue was transferred from their daily stock account i.e. RG-1 register but not entered in their Form-IV register - Held that: - This fact, by itself, does not lead to the inevitable conclusion of clandestine manufacture and clearance of their final product, in the absence of any other evidence on records - demand set aside. Demand of ₹ 79,392/- based on ageing report alleging the difference between the quantity in ageing report and daily stock account for two days i.e. 22.1.2013 and 29.3.2013 - Held that: - the ageing report is not a statutory document and no evidence of clandestine removal of such quantity brought on record by the department, therefore the demand of ₹ 79,392/- is liable to be set aside. Demand of ₹ 1,20,784/- stands confirmed on the basis of Ledger Purchase-B recovered from the premises of the traders being third party records - Held that: - the demand cannot be sustained on the sole basis of the entries made therein - The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - demand set aside. The demand of ₹ 17,994/- stands confirmed on the basis of the shortages detected by the officers during the course of their visit in the appellant ‘s factory - Held that: - Inasmuch as there is no other evidence, such shortages by itself cannot be held to be relatable to the clandestinely removed goods - demand set aside. Penalty - Held that: - the duty of ₹ 2,08,356/- is confirmed against M/s Vimsar Products Pvt. Ltd. and the balance demand is set aside. As regards, penalty the same is upheld to the extent of the demand confirmed. Penalty on other two appellant - Held that: - no separate role stands attributed to the appellants and no positive evidence stands adduced by the Revenue to show their complexity in the matter - penalty on them set aside. Appeal allowed in part.
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