TMI Blog2017 (6) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... kened the case of Revenue. The case of un-accounted manufacture and clearance is built upon certain sketchy evidences as narrated above, without any concrete corroboration. While the cases of clandestine removal cannot be precisely proved with 100% corroborative evidences, it is essential to have at least standard evidence which will clearly show the existence of un-accounted manufacture and clearance - In the present case, whatever evidences formed basis for the case of the Revenue are falling short of minimum requirement of credible case of clandestine removal. Since the case against the appellant-assessee could not be established regarding un-accounted clearances, the seizure and confiscation of Indian Currency and penal proceedings against the appellant – assessee will also fail. Demand for un-accounted clearance of copper wire rods - Held that: - It is clear that on physical verification of the premises of the appellant – assessee on 21.05.2005, no rolling mill was installing in the factory. No evidence has been placed in the proceedings before the lower authority to the effect that the appellant – assessee got wire rods manufactured by using some other’s facility. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises of the assessee. Further, some incriminating documents were also recovered and statements of various persons were recorded. 2.2 On the basis of investigation, the Department issued the show cause notice on 20.03.06, seeking confiscation of Indian currency, on the ground that the said currency was the sale proceeds of goods cleared clandestinely. 2.3 On the basis of the documents recovered from the factory premises of the assessee and the statements recorded from various persons, the assessee was served with the show cause notice dated 28.09.2007, alleging that the assessee had been receiving substantial quantity of copper scrap without any bills/documents and was not entering the same in its statutory records; that this scrap was used for manufacturing ingots and cleared to various parties after drawing into wire rods on job work basis without accounting in any statutory records and without payment of duty. The assessee was alleged to have cleared 362515.90 kgs. of copper wire. It was further alleged that 1952267 kgs. of ingots/wire bars appear to have been manufactured as per Bhatti register and have been cleared without payment of duty; that 3500 kgs. of scrap allegedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b.), Shiva Steel Rolling Mills Vs. CCE - 2005 (186) ELT 326 (Trib.),Bhushan Ltd. Vs. Commr.- 2005 (185) ELT 197 (Trib.), K.L. Steels Ltd. Vs. CCE - 1998 (100) ELT 406 (Trib.), Dulichand Silk Mills (P) Ltd. Vs. CCE - 2001 (133) ELT 468 (Trib.) to state that duty demand cannot be confirmed, when physical verification carried out on the basis of eye estimation only. 3.2 Central Excise duty can be levied, when the goods are removed from the factory. However, the Department has not brought on any evidence that shortage found in stock of raw material were used for manufacture of goods, which were clandestinely removed by the assessee. The assessee has relied on the decisions in the case of Galaxy Textiles Vs. CCE - 2011 (263) ELT 604 (Trib.), CCE Vs. Prakasan Pulverisers (P) Ltd.,- 2007 (218) ELT 57 (Trib.), CCE Vs. Bajrang Castings Ltd.- 2007 (216) ELT 623 (Trib.), Atul Aluminium Indus Vs. Commr. - 2003 (162) ELT 661 (Trib.), Rishi Packers Ltd. Vs. Commr. - 2003 (159) ELT 1110 (Trib.). 3.3 The Central Excise duty demand has been confirmed based on the records maintained by Shri Girish Chand and Shri Devinder Kumar Sharma, who are not the employees of the assessee, inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f arrest. Thus, the assessee submitted that since the statements recorded were retracted at the first available opportunity, no reliance can be placed on such statements. In this context, the assessee has relied on the judgment of Hon ble Delhi High Court in the case of CCE vs. Vishnu Co. Pvt. Ltd. 2016 (332) E.L.T. 793 (Del.) and the decision of Tribunal in the case of Centurian Laboratories vs. CCE 2013 (293) E.L.T. 689 (Tri.) 3.5 With regard to seizure of cash of ₹ 6,20,000/- from the residence of Shri Rajender Prasad Gupta and his wife Mrs. Ritu Gupta, the assessee submitted that out of such seized amount, an amount of ₹ 6,08,000/- was the cash-in-hand of the firm of Mrs. Ritu Gupta, mother of Shri Vinod Gupta, who is the proprietor of the assessee. That the said amount has been duly reflected in the income tax return of Mrs. Ritu Gupta for the year 2005-06. With regard to the balance amount, the money was kept by Mrs. Ritu Gupta at her house for daily house hold expenditure. The assessee further submitted that since no show cause notice has been issued to Mrs. Ritu Gupta, the cash seized from her custody cannot be confiscated. 4. The Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that this aspect have not been examined by the original authority, except stating that the affidavits were belatedly filed, only in November, 2011 and cannot be considered. Regarding statements given by these two persons and others, the appellant assessee pleaded that these were retracted at the earliest possible time. They have submitted copies of retraction letter alongwith postal evidence for dispatch to the excise authorities. 8. We note that the fact that these two are employees of the appellant assessee could not be established with any clear supporting evidence. In-fact, the appellant - assessee produced adequate evidence to the contrary. Further, the private records maintained by Shri Girish Chand were also relied upon by the Revenue to support the claim of un-accounted manufacture and clearance of copper ingots. The appellants assessee contested the claim, as factually untenable. The capacity of the only furnace with the appellant assessee is 3.5 M.T. Each heat takes 8 to 9 hours. Even if the furnace is operated round the clock, it is not possible to have more than 3 heats in a day. The diary maintained by Shri Girish Chand indicated in some pages four bhattis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. 10. We also note that during the course of enquiry, the officers did get some details regarding sale of copper ingots to various buyers, which was alleged to be un-accounted. No verification has been done from any of these buyers. There has been no evidence or discussion regarding excess electricity consumed and labour deployed, transport of un-accounted raw-material as well as finished goods etc. As already noted, the case of the Revenue is not supported by credible cog ..... X X X X Extracts X X X X X X X X Extracts X X X X
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