TMI Blog2016 (2) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... mption. Secondly no duty can be demanded on semi finished goods. It is also not the case of the Revenue that shortages of finished goods suggested by the auditors was finally accepted by the Respondent in their balance sheet for the relevant financial year. A case of clandestine removal can not be considered to be established based only upon the statutory auditors of the Respondent made on test check basis. Accordingly, appeal filed by the Revenue is rejected - Decided in favour of assessee - Appeal No. E/405/2007 - ORDER No. : FO/A/75114/2016 - Dated:- 5-1-2016 - DR. D.M.MISRA, HONBLE MEMBER (JUDICIAL) SHRI H.K.THAKUR, HONBLE Member(TECHNICAL) For the Petitioner : Shri A.K. Biswas, Suptd (AR) For the Respondent : Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the Learned Advocate that there cannot be any duty liability on the semi-finished goods demanded in the show cause notice. That a report of their auditors, suggesting shortages on the basis of test check, does not indicate any clandestine removal which is nothing but a case made by Revenue on presumption assumption. He relied upon the following case laws. (i) Oudh Sugar Mills Ltd Vs UOI [1978 (2) ELT (J172) (SC)] (ii) Maruti Udyog Ltd. Vs CCE, Delhi-III [2004 (173) ELT 382 (Tri- Del.)] (iii) CCE Vs Maruti Udyog Ltd. [2010 (262) ELT 180 ({P H)] (iv) CCE Vs Maruti Suzuki India Ltd. [2015 (319) ELT 549 (SC)] (v) Durga Trading Company Vs CCE, Lucknow [2002 (148) ELT 967 (Tri-Del.)] (Affirmed by Honble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strongly argued that shortages are detected by the statutory auditors of Respondent and there has to be clandestine removal only. On the other hand Respondent has argued that the shortages were suggested by their auditors, based on a test check, which as per Para- 9.5 of the adjudication order dt. 30/3/2007 included both excess shortages. It is also observed from Paras-7.5 7.6 of the O-I-O dt. 30/3/2007 that excess shortages of finished goods was explained by the Respondent, during adjudication, to be due to wrong recording of codes. There is no evidence with the Revenue that the re-conciliation done by the Respondent is incorrect. There is force in the argument of the Respondent that finished goods can not be both short excess and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further observed that no evidence whatsoever exists that any excess raw material was procured by the Respondent or was found in the stock of the Respondent during the relevant time. A case of clandestine removal can not be made and held to be established based an presumptions assumptions. CESTAT Delhi in the case of Durga Trading Company Vs CCE Lucknow (Supra) relied upon by the Respondent, made following observations in Para-9 9. It is well settled that the charge of clandestine manufacture of the dutiable goods and removal thereof without discharging the duty liable by an assessee, cannot be established on assumptions and presumptions. Such a charge has to be based on concrete and tangible evidence. It this context, reference may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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