TMI Blog2016 (6) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... ware in regard to generating report of print outs. Thus the figures of sales in the print outs could not be relied, for calculating the demand. The adjudicating authority has arrived at the duty demand, basing on the VAT returns, as there was no reliable records and details furnished from the appellant side. - Thus, though the adjudicating authority has used the words best judgment method for calculation of the duty demand in effect, he has placed reliance on the VAT returns and other documents available. When there was no data to arrive at the actual clearances made, the department has adopted the method best possible which may include a little guess work. Therefore, I cannot accept the argument of the learned counsel for appellant that the charges are merely based on theoretical working. - Demand confirmed - Decided against the assessee. - Appeal No. E/3155/2011 - - - Dated:- 12-1-2016 - Ms. Sulekha Beevi, C.S. Member ( Judicial ) Shri Y. Sreenivasa Reddy, Advocate for the Appellant Shri R.R.Bangar, AR for the Respondent ORDER [ Order per: Sulekha Beevi ] 1. The appellants are aggrieved by the demand raised alleging clandestine manufacture of pastri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in the Central Excise Law to demand duty basing on best judgment method . The appellant is a maker of sweets/biscuits/pastries. Sweets, though excisable are exempted from duty. Biscuits/pastries are dutiable and attract duty on MRP basis. The appellant was not aware of this and therefore did not pay duty on these goods. The Anti-Evasion Officers of the Revenue searched the premises of the appellant and recovered records including copies of bills and computer hard disk. Based on such documents, the officers arrived at the value of the dutiable product. The appellant under pressure was made to give statement to the officers. He deposed the value of the dutiable goods cleared for the period 2007-08 and 2008-09 to be ₹ 18 lakhs and ₹ 24 lakhs respectively. The appellant then voluntarily paid the duty and interest liability of ₹ 4,00,000/- lakhs calculated on these amounts and requested to drop further proceedings. However the department issued show cause notice proposing demand of duty of 5,16,186/- based on best judgment method raising the ground that appellant had not produced evidence of actual clearances. 4. The Learned counsel much emphasized the asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The appellants were manufacturing both excisable and dutiable goods but they are not maintaining any separate accounts in respect of manufacture of dutiable and exempted goods. It is stated that appellant did not mention description of goods on the sale bills and that there was huge variations between the total turnover declared by the appellant for the purpose of VAT payment and printouts taken by the Central Excise Officers for report of previous period. This difference is, explained in the statement given by Sri Vikram, a Software professional, who created the Software of print-out for the appellants. He deposed that there is technical problem in the Software in regard to generating report of print outs. Thus the figures of sales in the print outs could not be relied, for calculating the demand. The Commissioner (Appeals) called for commend form the adjudicating authority, who has sent commends to the Commissioner (Appeals) regarding the issues in the appeal. These commends would reflect the manner in which the demand was arrived. The relevant portion is reproduced as under: (i) The assessees have not maintained any records with regard to the inputs and the finished good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 2007-08, 2008-09 respectively. It has to be seen that this turnover will include sweets, which are exempted from payment of duty. Thus, though the adjudicating authority has used the words best judgment method for calculation of the duty demand in effect, he has placed reliance on the VAT returns and other documents available. In the Order-in-Original, it is stated as under: That In the instant case , there is no data other than the one furnished by M/s Dadu s pertaining to the periods cited. In view of the above, it was felt logical, to proceed by the best judgment method of calculation ie. arriving at the nearly correct value of sales figure by taking into account the actual data available on record and applying the ratio to the period for which no data is available. Hence the only data available is used in arriving at nearly correct sales values/figures which would be more accurate than the un-substantiated/presumed figures of sale declared by M/s Dadu s . Again para 5(v) of Order-in-Appeal gives the basis for calculation, which has been reproduced in para 7 above. 9. In the instant case the appellants have cleared the goods without payment of duty. Further t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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