TMI Blog2017 (5) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... emand duty - Mere shortages in stocks would not ipso facto lead to demand on account of clandestine removal. No evidence in the form of procurement of any excess raw material, production of goods, clearance and transportation evidence of such alleged short found quantity, receipt of consideration on account of clandestine clearance has been brought on record. Since in the present case no evidence of clandestine removal of goods has been brought on record by supporting corroborative evidences, there is no merit in the impugned order - demand set aside - appeal allowed - decided in favor of appellant. - E/391 to 394/08 - A/86706-86709/17/SMB - Dated:- 11-4-2017 - Mr Ramesh Nair, Member (Judicial) Shri. D.H. Nadkarni, Advocate for the Appellants Shri. Ajay Kumar, Joint Commissioner(A.R.) for the Respondent ORDER These appeals have been filed against the impugned order dated 12.12.1996 passed by the Commissioner, Central Excise, Mumbai - III, wherein duty demand of ₹ 42,511,195/- was confirmed against M/s. Welspun Polyesters (I) Ltd. and equal amount of penalty was imposed. Besides, a penalty of ₹ 25 lakhs was imposed upon its M.D Shri B.K.Goenka, & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... register maintained for jobwork of Silvasssa Unit where the production of 16700 Kgs was recorded against DEEC job work. The adjudicating authority did not consider the same. 1897.610 Kgs of production was also booked in RG 1 register but instead of being booked in RG -1 Register the same was directly shown in opening balance in RG -1 on 27.03.94. The opening balance was shown as 7418.05 Kgs which includes 5520.44 Kgs shown in record on 01.03.1994 and 1897.610 Kgs produced during strike period. The adjudicating authority did not consider the same. A quantity of 19406.320 Kgs of PTY was towards rewinding of yarns from metal caps to paper tubes was not booked as production in RG 1 being exempted and even the executive director Shri Mandawewalla had informed the same to the investigating officers, but the Ld. Commissioner declined to accept the same on the ground that the details of clearance were not given. As regard 17910 Kgs of PTY he submits that said quantity was wrongly booked as loose production by excise clerk in July 1994. The Ld. Commissioner however relied upon the statement of Executive director and confirmed the demand. The actual quantity of 28220.98 Kgs of PTY booked as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. The demands are based upon the comparison of computer sheets with the RG -1 and also some of the shortages was arrived at physical verification. The statements of the Assistant Manager Shri Madhusudan Tibrewalla has been relied upon to show that since he had accepted the shortage in case of some of the goods, hence duty is payable. In relation to shortage of 16700 Kgs of Yarn arrived on the basis of difference between computer sheets and RG-1 Register, the adjudicating authority had rejected the submission of the Appellant on the ground that the there is variation in description and lot numbers are different. The Appellant has pleaded that findings of variation is incorrect as GRN shows the lot numbers of base yarn received for processing and delivery challan shows the lot number of manufactured yarns. That the jobwork register/GRN and delivery challan has not been disputed. I find that it is not the case of the revenue that the goods were not returned back to Silvassa Unit after jobwork or that the goods were cleared elsewhere without payment of duty. Even the GRN and delivery challans related to processing of goods were not held to be forged or invalid which clearly shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. Vs. CCE, Kanpur 2013 (292) ELT A23 (TRI), the Tribunal held as under : 6. On going through the impugned order I find that the duly demand stand confirmed in respect of shortages detected at the time of visit of the officers read with the statement of Shri Jai Kishan Khatri. The appellants have strongly contended, the manner of weighment of the final product. It is seen that the Revenue has not produced any inventory on record to show that the weightment was actually done and the shortages were not on the basis of average weight system but real and based upon actual weighments. Similarly reliance of the revenue on the statement of the authorized representative cannot ipso facto lead to the inevitable conclusion of clandestine removal of final product especially when there is no variation in the stock of the raw material. There is no other evidence on record to reflect upon the above fact. Hon ble Delhi High Court in the case of Commissioner of Income Tax v. Dhingra Metal Works, 2010-TIOL-693-HC-DEL-IT has held that though an admission is extremely important piece of evidence, it cannot be said to be conclusive. 7. It is well settled law that allegations o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are numerous decision of the Tribunal laying down that such admission of shortages without there being any admission of clandestine removal, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and is required to be discharged effectively. Clandestine removal cannot be presumed merely because there was shortages of the stock or on the recovery of some loose papers. The Above judgment of the Tribunal was upheld by the Hon ble High Court as reported in Commissioner v. Vikram Cement (P) Ltd. - 2014 (303) E.L.T. A82 (All.)] 7. Further in case of Vishwa Traders Pvt. Ltd Vs. CCE 2012 (278) ELT 362 (TRI) as upheld by the Hon ble Gujarat High Court as reported in cce vs. Vishwa traders 2013 (287) elt 243 (guj) as well as in case of M /s Sakeen Alloys Pvt. Ltd. Vs CCE 2013 (296) ELT 392 (TRI) as upheld in 2014 (308) ELT 655 (GUJ) and in case of M/s Mahesh Silk Mills Vs. CCE 2014 (304) ELT 703 (TRI) as upheld in 2015 (319) ELT A52 (GUJ) , it has been constantly held that in absence of corroborative evidences of excess consumption of raw material, actual removal of unaccounted finished goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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