TMI Blog2017 (7) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008. The said officers also seized some records from their factory premises and recorded statements of the employees. A Show Cause Notice dated 05.11.2008 was issued to the assessee and its Director, being Respondent Nos. 1 and 2, proposing demand of duty alongwith interest and to impose penalty alleging the charge of clandestine removal of the goods. The Adjudicating Authority confirmed the demand of duty of ₹ 30,19,533/- alongwith interest and also imposed penalty of equal amount of duty and a penalty of ₹ 1,00,000/- on the Respondent No.2. By the impugned order, the Commissioner (Appeals) modified the Adjudication Order in so far as it has confirmed the demand of duty of ₹ 13,798/- alongwith interest and imposed penalty of equal amount of duty on the assessee and also reduced the penalty on the Respondent No.2 to ₹ 25,000/- and rest part of the order is set-aside. Hence, Revenue filed this appeal. 2. Heard both sides and perused the appeals records. 3. The charge of clandestine removal has been framed on the basis of four issues namely, (i) shortage in stock taking, (ii) Production Slip (pink coloured), (iii) transport slip and (iv) a consignment s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion slip would show the production of goods in bulk quantity, which cannot be marked as such. There are process of testing, packing etc. before entering in the DSA. I find from the impugned order that the assessee demonstrated before the Commissioner (Appeals) by way of a few representative production slips serial number wise and DSA clearance with Central Excise invoice, date. The Commissioner (Appeals) reproduced the said chart in his order and observed as under: From above it is seen that the bulk goods of the seized production Slips were packed and cleared on payment of duty. While packing, sometimes previous stock of bulk products was also added to complete the requisite packs. No abnormality is observed in such a practice. Only the statements of officials, which say that goods under the Production Slips are not entered in the DSA and the Production Slips are not retained after BIN cards are generated, are the evidences relied upon by the department to level the charge of clandestine removal. No abnormality is observed in the fact that bulk products under the production Slips are not entered in the DSA. It is shown in the Statement submitted that the bulk goods under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to M/s. BMW Industries which was upheld by the Commissioner (Appeals). The entire charge against the assessee is that they had removed the goods clandestinely. The Tribunal in various decisions discussed at length as under :- (a) In the case of Portland Cement (I) Ltd. Vs. Commissioner of C.Ex., Lucknow [2015(326)E.L.T. 304 (Tri.-Del.)], the Tribunal held as under: 15. It is also settled law that merely on the basis of statement of director, charge of clandestine manufacture and clearance cannot be established. Appellant's reliance on CCE v. Seven Seas Corporation, 2010 (259) E.L.T. 652 (Bom.) wherein the Bombay High Court has held that in the absence of any other material to corroborate the confessional statement by the person in charge of the business, the liability cannot be fastened on the persons. Evidence is not coming up in strength to argument the charge of clandestine activity. Their contention is fortified by Tribunal's decision in 2006 (200) E.L.T. 234 where it was held that entries in rough register could not be made the sole basis for concluding clandestine manufacture. 16 . It is settled legal position that the demand cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be dropped, there could be no reason for imposition of penalty on the both the appellants (no. 1 2) and both Directors/Partners. Deeper investigations into the movements of trucks which were used for clearance of so called unaccounted Cement, could have lead to irrefutable, evidence affecting outcome of the case. 18. Appellants have also come in appeal against the seizure of 1962 empty bags valued at ₹ 11,572/-. Commissioner has confirmed the seizure and ordered for confiscation under Rule 173Q(T) of the Central Excise Rules, 1944. I do not find any valid reason for seizure of empty bags which are packaging material. It is agreed that due account of these bags has to be made. But mere non-entry of small number of bags cannot warrant such a severe action. No intention has been brought on record by the adjudicating authority to indicate that these bags were to be used for packing clandestinely manufactured cement and consequent clearance without payment of duty. On this account, I do not find force in the department's finding. Accordingly I do not hold the seizure/confiscation and set aside the redemption fine imposed on the appellant. (b) In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidentiary value of the said statement in the absence of any other evidence, the Hon ble High Court observed that it is settled law that though the admission is extremely important piece of evidence it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. I also note that there 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. 10. As such, I am of the view that the statement, which was recorded on the date of visit of the officers, cannot, when standing alone, take the place of evidence so as to hold against them, especially when the appellant have explained that the said loose papers may relate to various stockists, which are working from their premises on rental basis. 11. Apart from the above, I note that the truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals). The Revenue's appeal is accordingly rejected. 10. The ld. A.R. on behalf of the Revenue relied upon the decision of the Tribunal in the case of Apurva Aluminium Corporation vs. Commissioner of C.Ex., Vadodara [2010 (261) E.L.T. 515 (Tri.-Ahmd.)]. The ld. A.R. particularly drew the attention of the Bench to the observation of the Tribunal that admission of clandestine removal/excess production, for which no further proof was required. He also relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Meerut Vs. Rishabh Velveleen (P) Ltd. [2006(201) E.L.T. 437 (Tri.-Del.)], where it has been held that mathematical precision is not required for giving evidence of each entries for which demand of duty was raised. In the present case I find that the assessee produced the statements by way of reconciliation of the documents and DSA, which were not refuted by the Revenue in their grounds of appeal and therefore the said case laws are not applicable in the facts and circumstances of the present case. 11. In view of the above discussions, I do not find any reason to interfere with the order of the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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