Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2018 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (9) TMI 85 - CESTAT NEW DELHI100% EOU - Clandestine manufacture and removal - suppression of production - copper ingots - Department has entertained a doubt that appellants are under-reporting the recovery of copper from copper scrap procured by them and by indulging into lower recovery, they are suppressing the manufacturing and clearance of copper ingots and thereby evading central excise duty - Held that:- For establishing the clandestine manufacture and clearance, the department has not made any sincere efforts to establish that appellant-assessee have manufactured and clandestinely cleared the copper ingots over and above what was declared by them in their statutory records. The law is fully settled that in every case of alleged clandestine manufacture and clearance, the onus is on the revenue to prove what it alleges with positive and concrete evidences - the average recovery of copper from five consignments of copper scrap cannot form concrete evidence to demand duty over and above the declared quantities of clearances of copper ingots. The department should have gathered some more precise evidences to prove unrecorded manufacture of copper ingots and sale of same. If there were excess sale of copper ingots other than what is provided in the statutory records of the appellant-assessee then some investigations should have been done to prove it but here the department has not even bothered to undertake any investigations on this side to prove that the assessee has manufactured and cleared certain quantities of copper ingots which are not recorded in the bookds of accounts - the charges of clandestine manufacture and clearance is not established on the basis of available evidences. There is no merit in demand of duty and same is not sustainable and accordingly the order in original is set aside - Since the demand itself is not sustainable on merit and therefore, question of imposition of penalties under Section 11AC of the Act on the firm and under Rule 26 of Central Excise Rules on the partners does not arise and thus, same are also set aside - appeal allowed - decided in favor of appellant.
|