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2015 (7) TMI 498 - CESTAT AHMEDABAD

2015 (7) TMI 498 - CESTAT AHMEDABAD - 2017 (346) E.L.T. 491 (Tri. - Ahmd.) - Clandestine removal of goods - whether the Appellant has clandestinely manufactured and removed 5,70,870 kgs of S.S. articles on the basis of a diary maintained by an employee Shri B.D. Patel, who was working as Excise Assistant of the main Appellant - Held that:- Clandestine removal cannot be sustained on the basis of statements and private records maintained by an employee in the absence of any evidence of procurement .....

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and clearances of excisable goods and accordingly duty demanded by the Revenue is not sustainable. - So far as disallowing CENVAT Credit of ₹ 1,10,978.00 and imposition of equivalent penalty upon the main Appellant is concerned, it is observed from the case records that this issue has not been agitated by the Appellant before the lower authorities. Therefore, the grounds taken before this Bench, that such shortage of inputs is negligible and should be ignored, is rejected as not enter .....

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o 200/VDR-II/2008, dt. 28.11.2008 issued on 05.11.2008. Shri Shankarlal D. Mehta, Director and Shri Girish B. Prajapati (Manager) of the main Appellant have filed appeals with respect to the penalties imposed by the Adjudicating authority and upheld by the First Appellate Authority, under the above mentioned OIA. Appellant M/s Super Forge India Ltd has also filed appeal with respect to penalty imposed by the Adjudicating authority. 2. Shri D.H. Dharmadhikari (Advocate) appearing on behalf of the .....

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Assistant of the main Appellant. It was strongly argued by the learned Advocate that the said diary contained the entries for which orders were received telephonically and these goods are also reflected in the statutory records as per the cross examination of Shri B.D. Patel as per answer to Q.No.13. That as per answer to Q.No.21 of the cross-examination at Para 2.6.2 of the OIO, excise documents are prepared for each dispatch. It was also strongly argued by the learned Advocate that the main Ap .....

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e letter is not furnished. It was the case of the learned Advocate that on the basis of Chartered Accountant s certificate and the monthly returns filed periodically, the main Appellant has no capacity to make S.S. Steel articles in excess of 225 MT per month. That clandestine removal on the basis of a diary without corroborative evidences; like procurement of excess raw material, transportation of finished goods, excess power used etc; is not sustainable. That entries made in the diary are only .....

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(163) ELT 472 (Tri-Che.)] v) Gujarat Texspin Ltd Vs CCE [2003 (160) ELT 193 (Tri-Mum)] vi) Krishna & Co. Vs CCE Jaipur [1998 (97) ELT 74 (Tribunal)] vii) Caress Industries Vs CCE Chennai [2002 (147) ELT 1035] (Tri-Che.)] 2.1 The learned Advocate appearing on behalf of the Appellant also argued that CENVAT Credit of ₹ 1,10,978.00 demanded with respect to shortage of raw material stock is only due to difference in weighing and is negligible and CENVAT Credit recovery of such minor differ .....

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whether the Appellant has clandestinely manufactured and removed 5,70,870 kgs of S.S. articles on the basis of a diary maintained by an employee Shri B.D. Patel, who was working as Excise Assistant of the main Appellant. It is the case of the Revenue that the S.S. Articles mentioned in the diary maintained by Shri B.D. Patel are clandestinely manufactured and cleared by the main Appellant in addition to the quantity of S.S. Articles mentioned in the statutory records. On the other hand, the mai .....

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red Accountant s certificate dt.10.10.2007 that Appellant has been certified to have a monthly production capacity of 225 MT. Approximately same quantities of S.S. articles have been reflected in the monthly returns filed by the Appellant during the relevant period. The quantity manufactured by the main Appellant as per ER-1 return is 656.66 MT for the relevant period and an additional quantity of 570 MT has been alleged to have been clandestinely manufactured and cleared by the main Appellant i .....

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part of the lower authorities to brush aside such a certificate given by the Chartered Engineer which is the quantitatively comparable to the quantities manufactured by the Appellant and shown in the monthly returns. 4.2 Another argument taken by the Appellant is that clandestine removal cannot be sustained on the basis of statements and private records maintained by an employee in the absence of any evidence of procurement of excess raw materials, use of extra power and transportation of finis .....

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follows:- 11. From the above settled law, it is clear that in a clandestine removal case, the facts of clandestine removal of excisable goods cannot be established only on the basis of certain statements which are retracted later but there has to be positive evidences like purchase of excess raw materials, shortage/excess of raw materials/finished goods found in the stock/factory premises of the appellant, excess consumption of power like electricity, any seizure of cash during the investigation .....

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estinely removed goods are seized or raw materials/finished goods were found either short or in excess in the factory premises of the appellant or at any other place. As per the Panchnama drawn at the factory premises it is shown that there was no excess/shortage of the raw materials or finished goods found. The documentary evidences collected from the business premises of M/s. Sunrise Enterprise and the statements recorded by investigation, can at the most raise a reasonable doubt that some cla .....

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ehsana was found containing the goods received from M/s. Sakeen Alloys Pvt. Limited under proper invoices. When the goods received under proper invoices are found in the stock yard of M/s. Sunrise Enterprise, then it is possible that out of such goods certain quantities were sold to various customers by accepting payment in cash. In such a situation, the quantification undertaken by the investigation becomes doubtful and incorrect. For this purpose cross-examination of the person Incharge lookin .....

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