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2016 (12) TMI 282 - CESTAT NEW DELHI

2016 (12) TMI 282 - CESTAT NEW DELHI - TMI - Demand - Clandestine removal - suppression of facts - sponge iron - Held that: - M/s PDIPL, the appellant admits the shortage of ₹ 103.815 MT of sponge iron in the form of admission statement dated 25.08.2008 given by Sh. A.R. Rao, General Manager (Commercial); the incriminating records/documents were also recovered from the factory of M/s P. D. Industries Pvt. Ltd., which corroborate the fact of clandestine removal of the subject goods found sh .....

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eets, outgoing and incoming goods details and statement of GM (Commercial), Sh. A.N.Rao. M/s PDIPL also deposited the major part of this demand which was appropriated by the impugned order - Based on the evidences available on record we agree with the findings given in this regard by the impugned order. Thus there is no scope to interfere with the impugned order confirming above demand of ₹ 18,39,809 against the appellant. - We have held that there is no scope to interfere with the imp .....

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; 52,31,280 on suppressed production and clandestine clearance of 5140.709 sponge iron is remanded for denovo decision to the adjudicating authority, who will provide reasonable opportunity of personal hearing and additional evidence, if need be to the Noticee-appellant M/s P.D. Industries Pvt Ltd. Consequently, the Revenue's appeal is allowed by way of remand to the adjudicating authority. - Appeal disposed off by way of remand. - Appeal No. E/1944/2010 with CO/213/10], Appeal No. E/3150/20 .....

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ant, M/s PDIPL. The revenue has also filed appeal (No. 3150 of 2010/EX) against the same order dated 26.03.2010 of the Commissioner inter alia stating that adjudicating authority erroneously did not confirm the duty in case of 1540.709 MT of sponge iron, production of which was suppressed and removed clandestinely by M/s P.D. Industries Pvt. Ltd.. 2. The appellant has been represented by the ld. Advocate, Sh. M.P. Singh and the revenue has been represented by the ld. AR, Sh. R.K. Majhi. Appeal N .....

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manner of stock taking was not the usual method of stock verification. ii. The ld. Commissioner has erred in law by confirming demand of duty on the basis of entries found in the loose papers recovered from the factory premises without testing the authenticity and correctness of the same. iii. The ld. Commissioner has erred in treating deposit of the amount by the appellant as admission of clandestine removal. It is respectfully submitted that the appellant had deposited the amount as per the d .....

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ven by Sh. A.R. Rao, General Manager (Commercial); the incriminating records/documents were also recovered from the factory of M/s P. D. Industries Pvt. Ltd., which corroborate the fact of clandestine removal of the subject goods found short during physical verification. The impugned order in para 10.2 gives the findings in this regard. There is no evidence produced by M/s PDIPL, the appellant, to counter the same. Therefore, there is no scope to interfere with the impugned order in this regard. .....

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.5 The department has adduced the collateral evidences in the form of loose papers, log sheets, outgoing and incoming goods details and confessional statement of Sh. A.N. Rao, General Manager (Commercial) who has accepted the shortages detected during Panchnama proceedings dated 25.08.2008 and the Noticee have also deposited ₹ 3,06,902/- vide GAR-7 dated 26.08.2008, ₹ 3,06,474/- (Rs. 2,97,547/- Basic, ₹ 5,591 Education Cess and ₹ 2,947/- SHE Cess) paid vide GAR-7 dated 29 .....

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d not be proved. More over what is admitted need not be proved aliunde. In order that a statement may amount to confession, in terms it should admit all the fact which constitutes an offence. Further I place reliance on the decision of the Hon ble Tribunal in the case of Surie Engg. Works Vs. CCE reported in 2004 (165) ELT 195 (Tri. Del) wherein it was held that admission is substantial piece of evidence unless proved as extracted under coercion, duress, threat etc. By following the above judgme .....

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have to be proved. In this regard I find that in the case of CCE, Surat-I Vs Umiya Chem Industries [2005 (185) ELT 410 (Tri. Mum)] the Hon ble Tribunal held in para 13 that in a case of clandestine removal, it is not recorded and other evidence of shortage of raw materials amply establishes that there is clandestine removal in this case . Applying the ratio of the above decision, I find that in the case in hand also the incriminating documents were recovered, which were well corroborated by oral .....

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,809 against the appellant. 4.3 We have held that there is no scope to interfere with the impugned order confirming the demand of ₹ 3,06,902 and of ₹ 18,39,809 (i.e total of ₹ 21,46,711), and once above demands have been found sustainable there is no scope to interfere with the imposition of equivalent penalty of ₹ 21, 46,711, where benefit of reduced penalty of 25 per cent of the duty confirmed and interest thereon has also been given under section 11 AC of Central Excis .....

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moval of ₹ 1540.709 MT of sponge iron is inter alia discussed in the impugned order in its paras 10.3, 10.3.1 and 10.3.2. The impugned order in para 10.3.1 observes as under: 10.3.1. In this context, I find that these loose papers, undisputedly, have been recovered from the Noticee s factory under panchnama dated 25.08.2008 in presence of two independent Panchas and Sh. A.N. Rao, GM (Commercial) and the Authorized Signatory of the Noticee; that Sh. A.N. Rao, in his statement has stated tha .....

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