TMI Blog2017 (8) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... not established - appeal allowed - decided in favor of appellant. - E/3127/2009-EX[SM] - A/70645/2017-SM[BR] - Dated:- 14-7-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Kamal Jeet Singh, Advocate, for Appellant Shri D.K. Deb, Assistant Commissioner (AR), for Respondent ORDER Per: Anil Choudhary This appeal filed by the appellant-assessee M/s Panchwati Prayogshala (Ayurvedic Division), have been filed against Order-in-Appeal No.103-CE/MRT-I/2009 dated 31/08/2009 passed by Commissioner of Central Excise Customs (Appeals), Meerut-I, whereby the appeal have been rejected, confirming the demand of ₹ 7,66,922/- under Section 11A of the Act with equal amount of penalty under Rule 25 of Central Excise Rules, 2002 with further demand for interest. 2. The brief facts are that the appellant is a proprietorship concern of Smt. Pooja Goel and is manufacturing Ayurvedic preparation such as Churan Goli, Anardana, Rasmola, Hingoli Hazemewala Tablets etc. under the brand name Panchwati which belongs to M/s Panchwati Prayogshala (Food Division), a proprietary concern of Shri Pankaj Goel, also Husband of Smt. Pooja Goel. Appellant was claiming b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elonging to M/s Pancwati Prayogshala (Food Division), proprietor Shri Pankaj Goel, thus the benefit of SSI exemption under Notification No.08/2003 was not available to the appellants. Accordingly, show cause notice dated 30 th May, 2007 was issued to the appellant requiring to show cause, as to why- (i) The Central Excise duty involved on the goods found shortto ₹ 1,77,922/- may not be demanded from them under Section 11A of the Act. (ii) The Central Excise duty amounting to ₹ 5,89,000/- involved on goods not entered in their statutory records should not be demanded under Section 11A of the Act. (iii) Central Excise duty amounting to ₹ 32,64,000/- for the period June, 2005 to February, 2007 involved on goods cleared by availing the exemption irregularly under the said Notification No.08/2003 be not demanded under Section 11A of the Act. (iv) Further, penalty was also proposed on the proprietorship concern and its proprietor. 4. Further, allegation in the show cause notice is that Shri Yudhish Kumar Gupta, Authorized Signatory in his statement in respect of loose slips recovered from the factory premises, appeared to be not tenable as he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n presence of the search team, the said contention activity was not believed. In view of the admission of the shortage by the Authorized Signatory Shri Lalit Mohan-Accountant, such stand had been taken after a period of 1 year and 8 months, appeared to be after thought. Shri Yudhish Kumar Gupta, Authorized Signatory in his statement dated 14 th February, 2007 stated that though he was not much related to production, however, as he understands, these goods were present in the factory, lying on the floor in loose condition and during the visit of the officers, in the absence of concerned dealing person these goods were not taken into account which resulted into conclusion of shortages. As the representative of the appellant had signed the panchnama, the said explanation was not believed, as regards shortage of finished goods, allegedly manufactured and cleared clandestinely, on the basis of loose slips found in the factory of appellant. On the date of search, appellant had contended that the loose slips related to production floor and the goods were on the production floor. There is no evidence of any clandestine removal and no demand can be raised for goods lying on the production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture and clearances, certain fundamental criteria have to be established by Revenue, which mainly are the following: - (i) There should be tangible evidence of clandestine manufacture and clearance, and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of: (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment 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 authorised 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 carri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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