TMI Blog2016 (1) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable in the absence of any corroborative evidence to the statement of Shri Baldev Singh, Managing Director. - Demand set aside - Decided in favor of assessee. - Excise Appeal No. 195 of 2007 with Misc. Application No. 51821 of 2014, Appeal No. 196 of 2007 - Final Order No. 52894-52895/2015 - Dated:- 14-9-2015 - Ashok Jindal, Member (J) And B. Ravichandran, Member (T) For the Appellant : Shri B L Narasimhan, Adv For the Respondent : Shri R K Grover, AR (DR) ORDER Per Ashok Jindal The appellants are in appeal against the impugned order confirming the demand of duty alongwith interest and imposition of penalty on both the appellants on the charge and clandestine removal for the period 1st April 2003 to 21st May, 2004. The Revenue has filed an application for early hearing of appeals. As the appeals are already listed today for disposal, therefore, the application for early hearing of appeals has become infructuous. Accordingly, the same are dismissed as infructuous. 2. The facts of the case are that a team of Central Excise officers visited to the factory premises of the appellant on 25th May, 2004 and had a search operation. They did not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Baldev Singh, no other corroborative evidence has been brought on record by the authorities below, therefore, impugned order is to be set aside. In support of his contentions, he relied on the decisions of CCE vs. Saakeen Alloys Pvt. Ltd. reported in 2014 (308) E.L.T. 655 (Guj.) which has been affirmed by the Hon'ble Apex Court reported in 2015 (319) E.L.T. A117 (S.C.). He also relied on the decision of Mahavir Metals Industries vs. CCE CUS, Daman, Vapi reported in 2014 (313) E.L.T. 581 (Tri. -Ahmd.)/ Klene Paks Ltd. vs. CCE, Bangalore - I reported in 2009 (247) E.L.T. 271 (Tri. - Bang.) and CCE CUS. SER. TAX, DAMAN vs. Nissan Thermoware P. Ltd. reported in 2011 (266) E.L.T. 45 (Guj.). He, therefore, prayed that the impugned order is to be set aside. 4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that the learned Commissioner (Appeals) has considered all the aspects raised by the appellant and it is the statement of the Managing Director Shri Baldev Singh who himself admitted that there is wastage of 10 to 15% and retraction was done later on, therefore, same is admissible evidence. Moreover, the appellant is an exporter u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Klene Paks Ltd. vs. CCE, Bangalore - I(supra), wherein the facts of the case are as under:- 2. The relevant facts that arise for consideration are appellant-company herein are manufacturers of HDPE/PP, woven fabrics, sacks. The appellant-company availed Cenvat credit of the duty paid on HDPE/PP granules purchased from various manufacturers like M/s. GAIL; M/s. Reliance Industries Ltd; M/s. HPCL etc. The officers of the DGCEI visited their factory and carried out various investigations. First show cause notice dated 4-7-2003 was issued directing one of the appellant-company herein to show cause as to why the 323 bags of plastic granules seized in the godown of M/s. Mahalakshmi Plastics be not confiscated. Further, investigations were carried out by the authorities and statements of various persons like the officers, directors of the company and also the suppliers of raw materials were recorded. Investigations culminated in issuance of show cause notices which summarises the contraventions, main allegation being, that the appellants had contravened the provisions of Rule 57A/57AB of the Central Excise Rules, 1944 and Rule 3(4) of the Cenvat Credit Rules, 2001-2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee . and thereafter the Hon'ble Gujarat High Court has held that the confessional statement of an accused in criminal offence which cannot be par with the statement recorded during preventive checks, therefore, the Hon'ble High Court has set aside the charge of clandestine removal. 9. We also find that in the case of Mahavir Metals Industries vs. CCE CUS, Daman, Vapi (supra), this Tribunal further held as under:- 7. I further note that my learned brother has also recorded that in absence of any specific evidence to support the clandestine removal of the quantity, it is necessary that the details given by the appellant subsequently are considered and commented upon. While agreeing with my learned brother that there is no specific evidence to uphold the finding of clandestine removal, the remand of the matter for re-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to show clandestine manufacture and clearance of the goods. Such cases are required to be established beyond doubt on the basis of concrete and positive evidences. We accordingly set aside the impugned order and appeals are allowed with consequential relief. 17. My view as regards there cannot be allegation of clandestine removal unless there is an evidence to indicate that there was clandestine manufacturing, is fortified by the judgment of Hon'ble High Court of Gujarat in the case of Nissan Thermoware Pvt. Ltd., wherein their Lordship have held as under : 7. Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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