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2022 (9) TMI 739 - Central Excise
Clandestine Removal - Lead Ingots - department allegedly found evidences regarding unrecorded production and clandestine clearances of Lead Ingots - demand based on assumptions and presumptions - corroborative evidences or not - Confiscation - redemption fine - penalty - HELD THAT:- Admittedly the order of the Commissioner (Appeals) in the 2nd show cause notice, by which demand has been dropped, has been accepted by the department.
The order of Adjudicating Authority in the 1st show cause notice has been reversed by the learned Commissioner only on that basis without discussing about any tangible evidence, as according to him in the 2nd show cause notice as well as in the order of Commissioner (Appeals) therein, nothing has been recorded regarding the goods seized at the factory premises i.e. 44531.50 kgs. of Lead Ingots, which in my opinion is totally misplaced.
A perusal of the 2nd show cause notice as well as the order of the learned Commissioner (Appeals) therein would show that the issue in both 1st and 2nd show cause notices is identical i.e. clandestine removal of goods and both the notices are based on the search conducted on 16.7.2013. It can safely be said that the further investigation as well as the issuance of 2nd show cause notice is the result of seizure of 44531.50 Kgs. of Lead Ingots from the premises of the Appellant on the premise that the appellant is into clandestine removal of the goods - when the learned Commissioner while dropping the demand in the 2nd show cause notice has examined the chart regarding the manufacturing activity under taken by the Appellant for the period from April, 2012 to July, 2013 then that would also include the Lead Ingots, which according to revenue must have been produced somewhere between May, 2013 upto the date of search i.e. 16.7.2013 and which is the core issue in the 1st show cause notice herein.
A perusal of the 1st Show cause notice, which is presently in issue, would show that it is based on the statements of Mr. Mukesh Maheshwari as well as the statement dated 23.7.2013 of Shri Shyam Singh Jadon, Excise Assistant of the appellant coupled with RG-1 register - Admittedly, a particular act is required to be done in a particular manner as provided under the statute but an inadvertent mistake to follow the procedural aspect cannot be adopted for arriving at the conclusions against the assessee. In view of the fact that in the 2nd show cause notice, the Commissioner (Appeals) has held in favour of the appellant herein and dropped the demand coupled with the discussions made in preceding paragraphs, this case would not fall within the four corners of either Section 34 or Rule 25. Therefore, the confiscation or redemption fine or penalty are not sustainable and the impugned order is liable to be set aside.