TMI Blog2017 (10) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007 to 26.3.2007 is not sustainable against the appellant in the absence of any corroborative/concurrent evidence - demand set aside. Appeal allowed - decided in favor of appellant. - E/50757/2017-SM, E/50778-50782/2017-SM - A/56734-56739/2017-SM[BR] - Dated:- 29-8-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Rajneesh Kumar Verma, Advocate - for the appellant Ms. K.V. Kumar, A.R. - for the respondent ORDER Per: Ashok Jindal The appellants are in appeal against the impugned order wherein duty has been demanded on the main appellant along with interest and penalties have been imposed on all the appellants on the ground of clandestine removal. 2. The brief facts of the case are that M/s Satguru Cement Pvt. Ltd. (in short Satguru ) is engaged in manufacture of Ordinary Portland Cement (OPC). On 30.3.2007 a search was conducted by Directorate General of Central Excise Intelligence wherein statement of Shri Badri Bansal, Manager, Shri Dharmendra Goyal have been recorded and certain loose slips pertaining to the period Jan. 2007 to March 2007 were also recovered and seized which pertains to the clearance apart from the clearance recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to that. He further submitted that statement of Shri Rajesh Bansal recorded on 8.6.2007 was also retracted on 8.6.2007 i.e. on the same day. 5. He further submitted that the ld. Adjudicating authority has accepted the production capacity of 33600 MT but failed to appreciate the fact that during the rainy season, the production of cement drops by at least 80% and the factory normally runs @ 75% of its capacity, if that has taken into consideration, the production capacity works out to ₹ 2100 MT, per month and considering the production in rainy season of 4 months drops to 5090, the total production for the impugned period works out to 18900 MTs and the appellant has recorded the production in RG-I i.e. 18369 MTs during the period Feb. 2006 to Dec. 2006. He further submitted that ld. Commissioner came to the conclusion that during the period Jan. 2007 to March 2007, the appellant has cleared 16247 MT cement clandestinely. However, he accepted the appellant has not manufactured such a huge quantity in these three months but relying on the production capacity of the plant, it is concluded that the cement has been manufactured in the impugned period and the same was remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a quantity of inputs i.e. lime to manufacture such a huge quantity of cement through illicit means. As no evidence on record has been placed by the Revenue, therefore, the demands are not sustainable. 11. With regard to the currency recovered during the course of investigation of ₹ 11,26,500/- it is his contention that Shri Mohan Lal Bansal who is proprietor of M/s B.M. Enterprises was having a cash balance on 30.3.2007 of ₹ 9,35,853.40 and out of that ₹ 8 lakhs were of M/s B.M. Enterprises. He further submitted that remaining ₹ 3 lakhs belongs to M/s Abu Industries Ltd., wherein Shri Badri Bansal is Director who was having cash balance of ₹ 4,00,614.10. To that effect the appellant has filed affidavit which have been supported by the certificate issued by the CA certifying the cash balance in their books of account. He further submitted that remaining ₹ 26,500/- pertains to the household expenditure account which was kept in the almirah of Shri Badri Bansal. 12. In that circumstances the demands are not sustainable. He also submits that the said currency cannot be the sale proceeds of clandestine cleared goods. He further submitted that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities 33600 MT per annum (the maximum production capacity). The defence of the appellant is that their factory is located in remote area, therefore, they received the direction from the head office to deliver the cement to a particular vehicle in the name of the particular buyer and the quantity. These directions were entered in the loose slips and this does not pertain to actual clearance. But on the basis of this loose slips, it is alleged that during the said period the appellant has made clearance of 16243 MT which has been alleged clandestinely manufactured by the appellant during the period Feb. 2006 to December 2006 and cleared during the period 1.1.2007 to 31.3.2007. The adjudicating authority in the impugned order has held that as there is production capacity of the plant is 33600 MTs per annum and during the impugned period they have recorded manufacturing of 18,369 MTs and concluded that the remaining quantity i.e. quantity in dispute on the basis of loose slips have been manufactured by them during the impugned period and cleared the same during the period Jan 2007 to March, 2007. 18. To arrive at that decision the adjudicating authority failed to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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