TMI Blog2016 (12) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be manufactured. As such, heavy onus is placed upon Revenue to establish the manufacture of the said goods. There are no statements on records, either admitting the manufacture of the said goods or removal of the same in clandestine manner. As such, I fully agree with the Commissioner (Appeals) that the findings of clandestine removal based solely on the shortages detected by the officers cannot be upheld. As regards Revenue's allegation for clandestine manufacture and removal of 495.000 MT of sponge iron during the period of three days preceding to the visiting of officers, I find that the Commissioner (Appeal) has discussed each and every document recovered by the visiting officers and has held that the same cannot be made the basis. The Commissioner (Appeals) has taken into account all the relevant facts, discussed the various documents and has decided the issue on the basis of precedent decisions of the Tribunal. It is a fact that even deponents of the statements at the time of recording, have nowhere admitted the fact of clandestine removal. The entire case of the Revenue is based upon the assumptions and presumptions. Ld. Departmental Representative has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scrutiny of the said documents led the officers to belief that the respondents have clandestinely cleared 495.240 MT of sponge iron during the period 28.08.2005 to 30.08.2005, without payment of duty of excise. 5. On the above basis, proceedings were initiated against the respondent by way of issuance of Show Cause Notice dated 31.05.2005 proposing to confirm the duty of ₹ 29,38,399/- along with confirmation of interest and imposition of penalty. The Show Cause Notice culminated into an order passed by the original adjudicating authority confirming demands and interest, as proposed and imposing penalty of equivalent amount under Section 11AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. 6. On appeal against the above order, Commissioner (Appeals), vide a detailed order has set aside the order of the adjudicating authority and allow the respondent's appeal. Hence, the present appeal by Revenue. 7. After having gone through the impugned order of the Commissioner (Appeals) as also the grounds of appeal taken by Revenue in Memo of Appeal, I find that the duty of ₹ 20,98,248/- was confirmed by the original adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o at Para- 3.15 supra. The shape of a Hopper and the submission that the storage capacity would not be uniform are factors which would compel one to arrive at a finding that the dip reading method applied cannot determine the actual quantity of stock. The acceptance of Shri Sunil Kumar Bhoyer ought not to have been taken as confirmatory unless such declaration relating to the stock position was confirmed by physical verification merely because the stock taking method has been objected to at a later date is no ground or evidence to render the stock arrived at by a doubtful method to be acceptable. The Original Authority's finding in this regard therefore cannot be upheld. Moreover, it is in record that the quantities lying in shed were assessed on pure guess work/eye estimate. Therefore, reliance in the case of CCE V/s Steel Compels Ltd - 2006 (197) LET 512 and other cases by the Appellant is well founded in not accepting the shohages arrived at in the panchanama and in the Original Authority's order; when no shortage could be arrived at the question of its removal does not arise. Revenue in their Memo of Appeal have not advanced any valid reasons or evidence to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huge raw-material to manufacture the said quantum of assessee's final product. Before the final product is removed, the same is required to be manufactured. As such, heavy onus is placed upon Revenue to establish the manufacture of the said goods. There are no statements on records, either admitting the manufacture of the said goods or removal of the same in clandestine manner. As such, I fully agree with the Commissioner (Appeals) that the findings of clandestine removal based solely on the shortages detected by the officers cannot be upheld. 10. As regards Revenue's allegation for clandestine manufacture and removal of 495.000 MT of sponge iron during the period of three days preceding to the visiting of officers, I find that the Commissioner (Appeal) has discussed each and every document recovered by the visiting officers and has held that the same cannot be made the basis. For better understanding, the relevant portion from the impugned order is reproduced below:- 19. The reliance on Computer print-outs in the present case prima facie cannot be accepted since such materials would have evidenciary value only if the requirements of Section 36B of the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started for a new campaign after shut down and it takes a couple of days to give a quantifiable and qualitative production. It appears from the production report shown to him that the production of sponge iron on three days were of Off grade and not fit for sale. That might be reason that the same was not reported to Accounts/Excise Section of their company for accounting . This plea also has force to reject the charge of unaccounted manufacture. Since what is to be entered as excisable goods would be fully finished material fit for marketing. I have also perused the contents of Para 9.13 of the Order impugned wherein the Appellant had contended before the Original Authority that a perusal of DSA/RG-1 under Annexure-II to the show cause notice in the Month of August, 2005 it would be clear that there is no production from 28.08.2005 to 30.08.2005 as the Kiln was shut down for preventive maintenance and accretion cutting. It would be evident from the DSA/RG-1 that the last Shut down was taken in 21.06.2005 to 27.06.2005. As stated above, the Kiln has to be shut down for preventive maintenance and ascertain cutting every one to two months for one week. After every shutdown a new cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the factory without payment of duty. The allegation made out on two such advices without questioning the security officer who has stamped on the reverse of the advice when more than 300 such advices were in the custody of the investigators, does not induce confidence to arrive at non duty paid removal. Similarly, in respect of delivery advice Nos. 323,321 301 in the name of M/s Shobha Ispat, Raigarh, M/s Harsh Vinimay, Raigarh and M/s Shree Consultant, Raigarh in relation to invoices No. 1604 dated 23.08.05, 1601/1602 dated 24.08.05, 1423 dated 08.08.05 (mentioned at the back of dispatch advice ) in the name of M/s Siddhi Vinayak, M/s Sai Ram Steel alloys, Jalna and M/s Siddhi Vinayak, M/s Sai Ram Steel alloys, Jalna and M/s Siddhi Vinayak Alloys P. Ltd. Jalna no investigations have been caused. Then again, at Para 7 (ii) of the impugned Show Cause Notice, the allegation is that The notice has written in the register to have cleared sponge iron under cover of invoices no. 1362/1363 three times (page 21 Sr. No. 1/2 dated 27.07.05 Sr. No. 1 3 dated 28.07.05 and Sr. No. 05 dated 29.07.05 ) on three different dates. Similarly invoices no. 1307, 1309, 1311, 1314, 131 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repared and maintained. In the absence of such cross verifications from the author of the register and the persons maintaining such record evidently leads to the rejection of the document in totality since it is not a prescribed statutory record. The entries in the register are not reflecting any corroboration as is being made out in the impugned Show Cause Notice and relied upon by the Original Authority. 25. Reliance has been placed in certain Registers and other documents kept in the laboratories and elsewhere without any corresponding evidence of the said trucks mentioned therein having left the premises. The allegation of parallel invoice as made out in the show cause notice is also not sustainable as such parallel copy To invoice as made out in the show cause notice is also not sustainable as such parallel invoice books have not been found/located. The entire charge and findings of the Original Authority is based on assumption and is clearly not sustainable, and hence cannot be accepted to prove the charge of clandestine removal, which needs more than mere presumption and assumption. The allegation at Para 7(iii), (iv) and (v) of the impugned Show Cause Notice are purely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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