TMI Blog2017 (6) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... tine removal of goods. The revenue has not given any evidence where the goods went, how they were removed. Appeal allowed - decided in favor of appellant. - E/799/2010-EX[SM] - A/53634/2017-SM[BR] - Dated:- 30-5-2017 - Mr. Ashok K. Arya, (Technical Member) Present Shri Kamaljeet Singh, Advocate for the appellant Present Shri G.R. Singh, AR for the respondent ORDER Per: Ashok K. Arya 1. The appellant namely M/s Tirupati Industries has filed this appeal against Order in Appeal No. 318/2009 dated 31/12/2009 whereunder inter alia recovery of ₹ 15 lakhs has been confirmed as redemption fine. Further, the impugned Order in Appeal has increased redemption fine in case of confiscation of 2025 kilograms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 15,000/-. Tempo was also seized with an option to redeem the tempo on payment of ₹ 5000/- as redemption fine. v. The Order in Original dropped the demand of duty of ₹ 15,15,415/- as there was no documentary evidence to prove the charge of clandestine removal. Penalty of ₹ 50,000/- was imposed on the appellant under Rule 25 of Central Excise Act Rules, 2002 read with Section 11 AC of Central Excise Act, 1944. A further penalty of ₹ 50,000/- was also imposed on the appellant for not maintaining proper records under Rule 25 of Central Excise Rules, 2002. A Penalty of ₹ 5,000/- was imposed on the tempo owner under Rule 26 of Central Excise Rules, 2002. vi. The Department filed an appeal against Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved as under. 37 As per show cause notice inputs /raw material was removed as such or removed clandestinely. According to Rule 3(5) of Cenvat credit Rules 2004 goods are required to cleared invoice only. I find nothing on record which shows that the goods are removed as such. Where are the documentary evidences i.e., who is the purchaser of inputs, what is the mode of transport of goods, where are the sale proceeds; all these evidences are not on record. Lack of evidence stops me to conclude that goods were removed as such. In the existence of such circumstances I have no hesitation to say that the party has not contravened the provisions of Rule 3(5), Rule 9, Rule 9(5), Rule 9(6) of Cenvat Credit Rules 2004. 4.1. The Ld. AR for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortage has actually been converted into finished goods, the Department chooses to make a case of removal of raw material as such as well as makes the allegation against the appellant of clandestine removal of the finished goods, found in excess. On the other hand Revenue mentions that the goods are in excess mainly on account of their non-recording in the RG-I register. When the facts are as mentioned and discussed above, one cannot agree with the findings given by the impugned Order in Appeal. The case laws cited by the Department are not applicable to the present facts. 5. Considering the discussions and the findings made above, the impugned order is set aside and the appeal allowed with consequential relief, if any, to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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