TMI Blog2012 (11) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... e's allegation that they cleared more quantity in the month of February, 2004 cannot be accepted. Set aside the confirmation of demand against the appellant and imposition of penalties imposed upon them - in favour of assessee. - E/3829 of 2006 SM & 21 - 22 of 2007 SM - 1419-1421/2012-SM(BR)(PB) - Dated:- 4-10-2012 - Ms. Archana Wadhwa, J. Appearance: Ms. Sukriti Das, Advocate for the Appellants Shri Sanjay Jain, AR for the Respondent Per Archana Wadhwa: As per facts on record, appellant is engaged in the manufacture of cement. Their factory was put to search by the officers on 29.9.04 and shortage of 362.502 MT was found in the stock of clinker which is an inputs for the manufacture of their final product. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants have submitted that the loose slips recovered from their premises do not show clearance of the cement. Infact the maximum capacity of their plant is 1000 MT per month and it is not possible to clear 2740 MT cement in February, 2004, in addition to 303 MT of cement admittedly cleared on payment of duty in the said month. As regards the loose slips, she submitted that the show cause notice used the expression that the said loose papers containing date-wise dispatches of cement bags, truck number and name of the consignee were probably prepared by his factory staff. It is their case that if the number of truck and the name of the buyers was available, Revenue should have made any inquiries from them. She further submits that a huge par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtages detected at the time of visit of officers. No inventory stand made by the officers indicating weighment of actual stock. Admission of authorised representative is only for the shortages detected at the time of visit and there is no admission on his part that the said clinkers was cleared by them or stand used in the manufacture of cement, which was cleared without payment of duty. As such, by extending the benefit of doubt to the appellant, I set aside the confirmation of demand on the said count along with setting aside of penalty. 8. As regards clandestine removal, Revenue s case is based upon recovery of the some loose sheets during the course of search of the factory. I have seen the said loose papers, which are relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden of proof is on the revenue and is required to be discharged effectively. Clandestine removal cannot be presumed merely because there was shortages of the stock or on the recovery of some loose papers. 10. As such, I am of the view that the statement, which was recorded on the date of visit of the officers, cannot, when standing along, take the place of evidence so as to hold against them, especially when the appellant have explained that the said loose papers may relate to various stockists, which are working from their premises on rental basis. 11. Apart from the above, I note that the truck numbers as also complete name of the purchasers was duly mentioned in the said loose papers. For the reason best known to the Revenue, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by production of concrete and tangible evidence. I find that apart from loose papers, which on the face of it cannot be related to the appellants business accounts and the sole statement of Director, there is no other evidence to reflect upon the clandestine activities of the appellants. The appellants have also taken a stand that it is beyond their capacity to manufacture more than 1000 MT per month and as such the Revenue s allegation that they cleared more quantity in the month of February, 2004 have to be taken with the pinch of salt. 13. In view of the foregoing discussion, I set aside the confirmation of demand against the appellant and imposition of penalties imposed upon them. 14. Appeals are allowed with consequential relie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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