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2024 (3) TMI 278 - AT - Central ExciseClandestine removal of goods - wrongful availment of Cenvat Credit - demand on the basis of statements recorded of the Appellants - corroboration of tangible evidence or not - appellant submits that demand confirmed by the Department is an extrapolated figure based on the calculation of production by taking the standard production per batch and simply that by the number of batches appearing in the Finished product analysis Dilatometer Register. HELD THAT:- The Department has not adduced any evidence in support of their claims. The Department has relied on the theoretical calculation of production and multiplying such assumed standard with no. of batches so appearing in the FDADR Register furthermore relying on some ‘chits’ apparently indicating proportion of raw material to be used for production process and drawn inference that the Appellants are removing goods in a clandestine manner. Clandestine removal of goods is a serious allegation and the reliance of Department on such incorporeal data to support their claim is perverse. Furthermore, no evidence has been brought on record to show any excess procurement of raw material for the alleged differential production by the Appellants. Corroborative evidence such as evidence of other inputs required for manufacture, transportation, details of buyers etc. have not been provided by the Department. The Tribunal took note of the decision in KAMAL BIRI FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, MEERUT [1997 (7) TMI 593 - CEGAT, NEW DELHI] wherein view has been taken that the allegations of clandestine removal of the goods will not stand established when based on the entries made by the assessee’s employee in a diary or on the basis of third party’s record in the absence of any corroborative evidence. Similar stance has been taken by this Tribunal in the case of M/S AMBICA ORGANICS, SHRI ANIL KUMAR GUPTA, SHRI VINOD KUMAR GUPTA VERSUS COMMISSIONER, CENTRAL EXCISE & CUSTOMS, SURAT-I [2015 (3) TMI 825 - CESTAT AHMEDABAD] wherein it was held that statements relied on to establish clandestine removal of goods should hold evidentiary value and with no adequate material available on record, clandestine removal of goods cannot be established. Thus, the existence of corroborative evidence is essential in order to establish clandestine removal of goods and the same cannot be merely based on assumptions and presumptions. In the present case the Department has not adduced such well-fortified evidence that strengthen the claims of the Department. CENVAT Credit - ground for denying Cenvat Credit has been made without recording any statement of the Appellant’s staff/directors and without adducing corroborative documentary evidence pertaining to non - utilization of imported Zir Flour - HELD THAT:- There is no dispute as regards import of material for which credit was taken, took place and goods reached the job worker at their premises for which transportation charges were paid, bills were raised by the job workers post which goods were received by the Appellant at their premises. It is observed that it is apparent on record that the Cenvat Credit availed by the Appellant was post such receipt from the job worker. There is no material on record to show that the goods were not utilized as inputs therefore there is no wrongful availment of Cenvat Credit when the records of the Appellant reflect due compliance towards all requirements as prescribed under the Cenvat Credit Rules, 2004 for availing such Credit. Under the present facts and circumstances there is no merit in the claim of the Department towards clandestine removal of goods and wrongful availment of Cenvat Credit - the impugned order is set aside - appeal allowed.
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