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2015 (2) TMI 602 - AT - Central ExciseClandestine removal of goods - disallowance of SSI Exemption - clearances value in the year 2003-04 exceeded the SSI Exemptions limit - Held that:- except his statement which stands nullified in cross examination, and the note books no other corroborative evidence of clearance of goods by M/s Shree Krishna and receipt of the said goods by M/s Maruti is appearing on record. No investigation was conducted at the end of M/s Maruti Ceramics regarding receipt of goods and the charges were made only on the basis of notebooks and statement. I find that once the cross examination does not support the statement and the adjudicating authority does not contradict the contents of the cross examination, in that case it cannot be said that M/s Maruti Ceramics has received any clandestine clearances of M/s Shri Krishna. show cause notice has relied upon the investigation and statements of two transporters - no Lorry receipt or record of transportation was found. There is no quantity determined which he has transported. Only on the basis of statement, demand cannot be confirmed against M/s Shree Krishna. Since there is no consignee of the goods who has received any goods through M/s Shah Roadways. I am of the view that his statement cannot be a ground to make allegation against M/s Shri Krishna. Merely on the basis of the transporter statements, allegation of clandestine removal does not sustain. Except the alleged receipt of Borax Acid which is one of the material required for manufacturing of Fritz, there is no evidence appearing in the seized records or otherwise that the Appellant has received any other raw material clandestinely. Even no transportation of any of the other raw material required for manufacture of fritz is appearing nor alleged in show cause notice. The allegation of the clandestine removal needs to be established by showing receipt of major raw materials, atleast of some quantity, use of excess raw material, input output ratio, transportation of raw materials, use of such goods in manufacture of finished goods, excess utilization of power, fuel, transportation of finished goods, investigation at the buyer s end, receipt of money etc. However I find that none of the above factors are taken into consideration during the investigation, which leads me to the conclusion that charges of clandestine removal are not established. When the statements and records relied upon by the revenue are not considered to be sufficient ground for clandestine removal, in that case merely on the basis of statements authenticating the said records cannot be a ground to allege clandestine removal. The investigation has not been able to substantiate the charges of clandestine removal. - Since the charges of clandestine removal against M/s Shri Krishna does not stands proved and the demands raised are not sustainable, therefore the benefit of SSI Exemption to M/s Shree Krishna for the year 2004 05 is not deniable and hence there is no reason to demand duty. - Following decision of VISHWA TRADERS PVT. LTD. Vs. CCE [2013 (4) TMI 55 - GUJARAT HIGH COURT] and COMMISSIONER OF CENTRAL EXCISE Versus BRIMS PRODUCTS [2008 (9) TMI 603 - PATNA HIGH COURT] - Decided in favour of assessee.
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