TMI Blog2014 (7) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... nue is much on the higher side when compared to the electricity consumed during the period 1.1.99 to 16.2.99, there is virtually no evidence against the appellant reflecting upon the excess production and clearance. We note that the clandestine removal is a serious charge against the assessee and inasmuch as the burden for the same is upon the Revenue, the same is required to be discharged by production of tangible and positive evidence. Merely because during the period in question the appellant was indulging in clandestine activities, would not ‘ipso facto’ lead to establish that they have been indulging in such activities even during the past period. To manufacture such a quantum of their final product, they need raw material and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Fairdeal Agencies who are traders in the goods manufactured by M/s. R K Polytubes. 2. As per facts on record M/s. R K Polytubes is engaged in the manufacture of PVC pipes and tubes. Their factory was visited by Central Excise officers on 16.2.99, who conducted various checks and verifications. There was some shortages and excesses found in the stock of raw material and as also of their final product. The said shortages and excesses stand dealt by the Revenue by way of another show cause notice and are not the subject matter of present proceedings. 3. The officers also further scrutinized the records and resumed one private production register and a file from the factory itself. The said private production register relates to the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings were initiated against the appellant for confirmation of demand of duty and for imposition of penalty. The said proceedings resulted in passing of order by the Commissioner vide which he confirmed the demand as proposed in the notice and imposed penalties on both the appellants. 6. After hearing learned advocate Shri J M Sharma appearing for the appellant and Shri M S Negi, learned DR appearing for the respondent, we find that primarily the demands stand raised against the appellant on the following four counts. 1. Private production register which was recovered during the search pertains to period 1.1.99 to 16.2.99; 2. Stock ledger book of M/s. Fairdeal Agencies - a trading firm; 3. Raw maerial supplied by M/s. Alpha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] . As such, he submits that electricity consumption cannot be made the sole basis for confirmation of demand of duty. Inasmuch as there is no other evidence, he prays for setting aside the demand. 8. Countering the arguments, learned DR submits that the appellant has already accepted that during the period from 1.1.99 to 16.2.99, they have indulged in clandestine production and clearance of goods, as reflected in private production register. Demand for the prior period has been confirmed by taking into account the admitted position of consumption of electricity during the period from 1.1.99 to 16.2.99. He further submits that appellant has himself admitted that he was receiving more goods than the goods reflected by them in their statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant was indulging in clandestine activities, would not ipso facto lead to establish that they have been indulging in such activities even during the past period. To manufacture such a quantum of their final product, they need raw material and the actual production of the same and then the clandestine clearance to their buyers. The Revenue has neither established that as to who supplied the raw material to the appellant during the said longer period of two years. There is also no statement of any person actually doing the manufacturing activity so as to reveal that excess manufacture was done by them during the period. Further no buyer of the assessee stand identified by the Revenue. We also note that the statement of Shri Ravi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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