Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2017 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 7 - AT - Central ExciseClandestine manufacture and removal - TMT Bars - duplication of demand - Held that: - we are satisfied that the Department have wrongly read the account of the appellant in the books of KIL. It is evident that both the transaction on the debit column and the credit column have been added, arriving at erroneous conclusion. Thus, we hold that the show cause notice with respect to the demand of ₹ 16,00,60,335/- is erroneous and not sustainable. Accordingly, we set aside the demand of ₹ 16,00,60,335/- in respect of royalty payments by appellant to KIL, and remand the matter to the learned Commissioner for re-verification of the mistake in calculation, apparent on the face of record. Stock verification - case of appellant is that no actual stock taking was done by the officers and the statements recorded during search and investigation were under pressure, is not correct - Held that: - regarding Physical verification of stock we observe that such exercise was challenged by the appellant immediately after search, the Pancha witness Shri Daulat Ram during cross examination confirms not undertaking of stock taking exercise. During subsequent statements the Appellant or its directors were never again confronted on the aspect of retractions and from this we find force in the appellants arguments that no such stocktaking was actually done - Ld. Commissioner’s finding that each test recorded in the diary of chemist is one heat and calculating total production by an arithmetic calculation is not sustainable in view of the specific statement of the director during investigation and not recording of the any statement of the chemist who had made entries in the said diary. Further, it is a legally settled position that no demand for clandestine manufacture can be sustained based on theoretical and uncorroborated calculations. Clandestine removal based on register of vehicles booking maintained by New Vikas Transport Company - Held that: - we find force in the appellants arguments that these are not record of vehicles actually transported but only a memoranda record of bookings recorded by transporter for approximate vehicles to be supplied to the appellant. This is very clear from the record of cross examination of the transporter Moin Khan, which leaves no room for any other interpretation and therefore any such demand is not sustainable. This also applies to the demand based on loose GRs. A perusal of ledger resumed from Kamdhenu Ispat Ltd Shows separate column for Debit and credit amount whereas Revenue has put the amount of debit column as well as credit column in one single Column and then totaled it, which is nearly doubled because of wrong merging of the Debit side and credit side column. In our view any confirmation of demand based on such doubling of amount(s) cannot be sustained. There is no plausible reasoning given by Revenue in support of totaling of debit amount and credit amount, while calculating demand of duty because of difference in royalty. Further, not recording of statement of Kamdhenu Ispat Ltd, on such resumed ledger account, also shows that there is no substance in the finding of the Revenue that alleged difference in royalty leads to clandestine clearances. Appeal allowed in part and part matter on remand.
|