TMI Blog2014 (6) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.08 and details of receipt of MS ingots from S.S. Steel have been recovered from the factory premises of the appellant. Therefore in term of the provision of Sec 36A of the Central Excise Act, 1944, there shall be presumption about the truth of the contents of these paper slips and the burden is on the appellant to prove that their contents are false. In this case, Sh. Ranka, in his statement by explaining the entries in the paper slips has accepted the correctness of their contents. Therefore, there is no reason for discarding this evidence for the purpose of proving the allegation of duty evasion against the appellant - Once on the basis of the documents recovered from a manufacturer’s premises, unaccounted purchase of any of the principal raw-material or unaccounted sale of finished goods is clear, a presumption can be made of unaccounted manufacture and clearance of the finished goods without payment of duty and unless the manufacturer produces cogent and concrete evidence in his defense, the allegation of clandestine clearances of finished goods would be treated as proved and duty demand on this basis can be confirmed - duty demand and the penalty has been correctly upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MS Ingots from S.S.Steel. Duty involved on the shortage of 10.150 MT was 68,376/-. As regards the second slip, the officers were of the view that only the quantity of 43.49MT of MS Ingots received from S.S.Steel has been accounted for and the remaining quantity of(47.715+ 30.040) MTs totaling 77.755 MT is not accounted for and had been used in the manufacture of finished cleared clandestinely. On this point also, Sh. Ranka was questioned and he stated that non-accountal of 77.755 MT of MS Steel was due to the mistake of his Assistant Sh. Ram Gopal Chouchary. The duty demand of Rs. 2,82,703/- is based on alleged clandestine clearance of MS angles manufactured out of alleged un-accounted receipt of 77.755 MT of MS Ingots. After issue of Show Cause Notice, this matter was adjudicated by the Assistant Commissioner vide order-in-original dt. 25.08.09 passed by him by which he confirmed the duty demand of Rs. 3,51,119/- along with interest and imposed penalty of equal amount on the appellants. In course of proceedings before the Assistant Commissioner, the appellant pleaded that there was no shortage of 10.150 MT of MS angles and that a quantity of 47.715 MT of steel ingots mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oca Cola Beverages Pvt. Ltd., reported in 2006 (205) ELT-(700) has held that the burden to proving the allegation of clandestine removal lies upon the Revenue for which for sufficient and tangible evidence must be produced, that the Tribunal in case of S.T.Texturiser Vs. CCE, Surat-I, reported in 2006(200) ELT-234 (T-Mum.) has held that allegation of clandestine removal being positive act requires to be corroborated by cogent evidence and that in view of the above submissions, the impugned order is not sustainable. 4. Sh. Davinder singh, learned Jt. CDR, defended the impugned order by reiterating the findings of Commissioner (Appeals) and emphasized that so far as the shortage of 10.150 MT MS angles is concerned, the appellant s plea that this is not actual shortage, is not correct, that the stock taking had been done in the presence of the appellant company s director Sh. Ranka who had signed the stock taking report showing the shortage and had expressed his satisfaction about method of determination of weight, that in view of this the appellant cannot say that the method of stock taking was not correct when at the time of stock taking immediately thereof no such protest was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication and appeal proceedings cannot reverse their stand and say that the shortage of 10.150 MT of MS Ingots was not real. Moreover Sh. Ranka while explaining the contents of the slip stamped Capital Ispat Limited had stated that part of the shortage of 10.150 MT of MS angles is due to clearance of 6MTs of MS angles on 30.06.08 in Truck No. RJ-14-R-1288 without invoice and without entry in the records. In view of this the appellant cannot claim the shortage of 10.150 MT, was not actual shortage. Therefore I do not find any infirmity in the impugned upholding the duty demand of Rs. 68,376/-. 7. As regards the duty demand of Rs. 2,83,703/- based on the second paper slip on which there are hand written entries referring to receipt of some goods from M/s. S. S. Steel, the appellant plea is that this document does not pertain to appellant as the same had not been recovered from their factory as there is no Panchnama. This plea is not acceptable as Resumption Memo had been prepared in which the documents recovered from the factory and taken over by the officers which included the two paper slips, are mentioned and this Resumption memo had been signed by Sh. Ranka, Director of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of this case as in this case, the duty demand of Rs. 2,63,703/- is not based on third party documents like documents recovered from the Transporter s premises, but is based on the documents-loose paper slips, recovered from the premises of the appellant, the contents of which have been explained by the Director of the appellant company. Once on the basis of the documents recovered from a manufacturer s premises, unaccounted purchase of any of the principal raw-material or unaccounted sale of finished goods is clear, a presumption can be made of unaccounted manufacture and clearance of the finished goods without payment of duty and unless the manufacturer produces cogent and concrete evidence in his defense, the allegation of clandestine clearances of finished goods would be treated as proved and duty demand on this basis can be confirmed. 9. In view of the above discussion I hold that duty demand and the penalty has been correctly upheld. 10. Sh. Bipin Garg at this stage mentions that the entire duty of Rs. 3,51,119/- had been paid even before the issue of Show Cause Notice and inspite of this in the Adjudication Order passed by the Assistant Commissioner, no option had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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