TMI Blog2017 (1) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... essure or duress, the retraction carries no weight and is an afterthought particularly since they are admitting that they were actively associated with the officers in the entire verification exercise. I also find that the retraction has not been addressed to the investigation officer who recorded the statement. The appellant have also argued that no panchnama was drawn on the spot. I find that the weighment exercise was done in the presence of the Director, with his active assistance. The Director has certified the correctness of the weighment exercise and subsequently admitted the shortage of scrap. Therefore, he cant take this plea at this stage. No infirmity in the impugned order - appeal dismissed - decided against appellant. - Appeal Nos. E/54837 & 54843/2014 - Final Order No. 60047-60048/2016 - Dated:- 13-1-2017 - Mr. Devender Singh, Member (Technical) Sh. Rakesh Soni, Director for the Appellant Sh. Satya Pal, A.R. for the Respondent ORDER Per Devender Singh M/s K.C. Soni and Sons Steels (P) Limited, Behind PSEB Grid, Vill. Kumbh, Amloh Road, Mandi Gobindgarh are engaged in the manufacture of Alloy Steel Ingots, Non-Alloy Steel Ingots Runners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help of overhead crane and magnet installed in the factory premises. The weighment slips in respect of each and every tipper which was weighed were prepared. On the basis of these weighment slips, a detailed chart was prepared on the spot showing the tabulation of the weighment slips. As a result of verification of the scrap, a quantity of 1410.200 MT was physically verified against a recorded balance of 2813.903 MT. Central Excise authorities thus found a shortage of 1403.703 MT of scrap in the factory premises. 5. The statement of Sh. Rakesh Soni, Director of the Noticee was recorded on 24.09.2011 wherein he inter alia stated that:- i) Unit is presently engaged in the manufacture of MS Ingots only and the rolling mill had been lying closed since the last almost three months. The furnace has a capacity of 8MT. ii) On being asked about this stock statement found on his table, he explained that this statement depicted the factual position of the stock of scrap lying in the factory premises whereas the recorded balance in the books had been shown on the higher side due to financial constraints and for obtaining bank limits on the higher side; iii) He also agreed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their RG 23-A part II account vide Entry No. 517 dated 24.09.2011. 7. The Director of the Noticee submitted a letter dated 27.09.2011 to the Commissioner, Central Excise Commissionerate, Chandigarh I, retracting therein his statement dated 24.09.2011. The Director of the Noticee took the plea in his retraction letter dated 27.09.2011 that the reasons for shortage stated by him in his statement dated 24.09.2011 were not correct in as much as the exact reasons for shortage were not due to the fact that the material had not been received in their factory but the reasons for shortage was that they had been showing less burning loss during the previous years from 2008-09 to 23.09.2011. 8. The Noticee has electronically filed the ER1 and ER 6 return for the month of September, 2011. These returns revealed that they have shown the consumption of raw material of 2604.861 MT (M S Scrap 2392.368 MT + Sponge Iron 192.719 MT + Silicon Magnese 19.774 MT) and the finished goods manufactured out of the said raw material were shown as 1141.099 MT (M S Ingot 1129.088 + Runner Riser 12.011 MT). Thus burning loss of 1463.849 MT has been reflected in the month of September, 2011 which comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ex., Mumbai 2011 (270) E.L.T. 643 (S.C.) and Chowbey Sugandhit Tambaku Co. Vs. Commr. of C. Ex., Patna 2001 (131) E.L.T. 222 (Tri. Kolkata). He further stated that it was certainly possible to load the trucks with magnetic tippers and added that the weighment had been correctly done in the presence of the appellants, who had actively participated and agreed with the weighment in Para 1.4 of the show cause notice. 13. Heard the parties and perused the records. 14. I find that during the visit to the factory the officers found the computerized statement of stock of raw material, which had been prepared by the Director of the appellants and was on his table, which the Director admitted to be the correct statement. A physical verification was done of the inputs in the presence of the Director and weighment slips for each tipper truck used in the weighment were prepared. On the basis of these weighment slips, officers prepared a detailed chart of physical verification. The entire exercise was done in the presence of the Director and with his active assistance. The Director signed the chart in token of its correctness and he was fully satisfied with the manner of physical verific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides, the managing Director of the Company on his own volition deposited the amount of ₹ 11 Lakhs towards excise duty and therefore in the facts and circumstance of the present case, the aforesaid statement of the counsel for the respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress. I also find that the plea of burning loss does not sustain because in the month immediately following the investigation, the burning loss shown by the appellants in ER-1 and ER-6 Returns was 56.20% of the total raw material consumed. Such high level of burning loss is clearly not normal and seems to be a deliberate ploy to justify the shortage of scrap detected in the preceding month. The party has relied upon the case law of Ram Steel Rolling Forging Mills Vs. CCE, Mumbai-II (supra) to clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other case laws relied upon by the appellants relate to the standard of evidence in the case of clandestine removal. In this regard, the following observations of the Ld. Commissioner (Appeals) are well reasoned:- 7 Another contention of the appellant is that the department has not been able to establish the case by corroborative evidence. It is observed that in such cases where the movement of the goods have been made without the invoices and without entry in the books of accounts, the statements of the Director are enough corroborative evidences to prove the clandestine removal. In this context it is observed that the Hon ble Tribunal in the case of Chowby Sugandhit Tambaku Co. Vs. CCE reported as 2001 (131) E.L.T. 222 (Tri.- Kolkata held as under:- Clandestine removal Proof Revenue authorities not required to prove by mathematical precision activities of clandestine removal which are in personal knowledge of the manufacturers for which all precautions are taken to avoid detection in future Rules 9(2) and 173(Q) of Central Excise Rules, 1944. 19. In view of the foregoing, I find that there is no infirmity in the order of the Ld. Commissioner (Appeals) and the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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