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2018 (8) TMI 165 - AT - Central ExciseClandestine removal - raw-material as well as the finished goods - demand based on third party evidence - Held that:- There is a plethora of judgments to hold that to stand upon the charges as that of clandestine removal, there has to be some clinching evidence and the demand cannot be confirmed based on presumptions and assumptions - The Hon’ble High Court of Allahabad in the case of Continental Cement Co. Vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] has held that the charge of clandestine removal is a serious charge, which is required to be proved by the Revenue by tangible and the sufficient evidence. It was clarified by the Hon’ble that mere statements of buyers that too based on memories were not sufficient without support of any documentary evidence. The entire case of the Revenue is based upon the records recovered from M/s Monu Steels. Even in these records, the appellant’s name has not been spelt correctly and it is based upon the statement of the representative of M/s Monu Steels that the Revenue entertained an assumption about it to refer to the appellant’s clearances - the Revenue has not made any enquiries from the buyer’s Steels and has solely relied upon the entries made in the record of M/s Monu Steels - Any demand and the proportionate penalty on the Director of the manufacturer is not sustainable. Demand and imposition of penalty qua M/s Kailash Traders, the supplier of sponge iron (the raw material) to the manufacturer - Held that:- Once the demand is not sustainable against the manufacturer, it does not lie against the supplier of raw material especially for want of any evidence corroborating the allegations - demand set aside. Penalty on Mr. Sunil and Mr. Ashok - scope of SCN - Held that:- The facts as brought to the notice i.e Mr. Sunil is not the noticee of impugned SCN and that Mr. Ashok is not the Director of appellant, are perused as correct - Since it is the settled law that the adjudicating authority cannot be go beyond the Show Cause Notice, the order imposing penalty upon him is held to be a definite error in the order - penalties set aside. Appeal allowed - decided in favor of appellant.
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