TMI Blog2007 (1) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... following questions have been proposed for the admission of this appeal:- (A) Whether confessional statement given by assessee and not retracted immediately thereafter, is or is not of a sufficient evidential value to (a) confirm demand under proviso to Section 11A of C.Ex. Act, 1944 and to (b) prove suppression of facts with intent to evade duty; (B) The goods were removed without invoices and without accounting for in any of statutory C. Ex. records as admitted in a statement of assessee are not sufficient to say that goods were clandestinely removed. Whether it is absolutely essential to catch actual clandestine removal outside factory premises, in order to prove that goods were clandestinely removed or Department s case can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted quantity of PTY, POY is required to be processed. No such evidence exists of unaccounted POY receipts and or use. Reliance is well placed on the Supreme Court decision in case of Oudh Sugar Mills - 1978 (2) E.L.T. J172 (S.C.) to not uphold this working out of clandestine production as unaccounted removal. (b) (i) The appellants plea that the oil in question was being shifted from stores to the production area in buckets and loss pleaded on such transport were not even considered by the adjudicator. (ii) The plea of Work in progress, the PTY lying in the factory and stocks of oil and POY in balance on 31-3-1996 were not considered; the same would reveal a pre-deposit set mind. We cannot uphold the confirmation of demands, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by surprise by the officers. No such material exist. Mere unauthorised and clandestine manufacture of PTY, as alleged by Revenue, cannot be established without removal unauthorised and clandestine are words associated more with removal than production. The findings of the Adjudicator are mere ipse dixit and cannot be sustained, in absence of any corroboration of tainted removals. Since, the burden of clandestine removal is not discharged, the reliance on Kanunjo Co. - 1983 (13) E.L.T. 1486 and Siemen Ltd. - 1994 (70) E.L.T. 305 by the adjudicator cannot be upheld. We would find that Bombay High Court Division Bench s decision in the case of Kirloskar Brothers Ltd. v. Union of India - 1988 (34) E.L.T. 30 (Bom.) holding unaccounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RG 1 figures, to indicate that the records as regards entries of POY consumption and PTY manufacture cannot be disputed. These figures/chart do not demonstrate that unaccounted PTY was ever manufactured or and removed. (f) We find the notice was issued on 24-3-2000 and the allegations of unaccounted production is for the period March 1994 to November 1994 and April 1995 to March 1996. Part of the period is clearly barred by limitation of even 5 years. The period within 5 years also cannot be upheld for want of suppression or ingredients of proviso clause to Section 11A(1). (g) When we find no unaccounted production and or non-duty paid removals of PTY established, we find no reason to confirm the duty demands and uphold the penalties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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