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TMI Blog2017 (10) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... earance apart from the clearance recorded in their statutory records. As per these slips, M/s Satguru has cleared 18007.75 MT of cement during the said period. On the basis the said loose slips and corresponding statements recorded duly investigation and cash seized from the residential premises, it was alleged that the appellants have clandestinely removed huge quantity of cement without payment of duty. The Show Cause Notice was issued on 2.1.2009 to demand Central Excise of Rs. 17227997/- on the basis of electricity consumption recorded for manufacture of cement. The matter was adjudicated, the adjudicating authority considered the fact that power consumption should be 155 unit per MT instead of 72.36 unit per MT proposed in the show cause notice, therefore, the demand was recalculated and reduced on the basis of electricity consumption to Rs. 48,75,060/- along with interest and penalty on the co appellants were imposed. The said order was challenged before this Tribunal. Vide Final Order No.A/52415-52420/2015Ex.(DB) dated 20.7.2015, this Tribunal, remanded the matter back to the adjudicating authority for fresh adjudication holding demand on the basis of electricity consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same was remain in stock till disposal in Jan. to March 2007. 6. The ld. Counsel controverted the observations of the ld. Adjudicating authority on the ground that the cement cannot be stored for a long time and if it is stored for a long time, it is very prone to get spoiled with the passage of time by hardening. No prudent man shall store such a huge quantity of stock just to dispose it, later on. It is further, submitted that there was a regular production during period Jan. 2007 to March, 2007 and clearance of the cement is recorded in RG-1 register. If that quantity is considered for the period Jan to March 2007 and also taking into consideration the production of Feb. 2006 to December 2006, it means the appellant was producing the cement and clearing the same in routine and not storing such a huge quantity in their factory. Further it is contended that excess quantity the stock kept for a long time (particularly during rainy seasons) the cement would render unusable. Therefore, the said practice is not economically viable. He further submits that to store such a huge quantity, the appellant is not having the space. The appellant is having a space only to store 10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation conducted by the DGCEI, the matter was reported to the Sales Tax department which made out a case against the appellant and the charge against the appellant and the charge against the appellant of clandestine removal was dropped. Therefore, the impugned order is not sustainable. He further submitted that as the demands are not sustainable, therefore, penalties on the appellants are not imposable. 13. On the other hand, ld. AR opposed the contentions of the ld. Counsel and reiterated the observations made by the ld. Commissioner in the impugned order particularly in para 40.3 and 41. Therefore, impugned order is to be upheld. 14. Heard both sides considered the submissions. 15. On careful consideration of the submissions made by both sides, I find that this Tribunal has remanded the matter back to the adjudicating authority on the following observations : "11. As we have already observed that in the impugned order, the only basis for the demand of duty is electricity consumption but no comments have been made by the adjudicating authority to demand on the basis of documents seized during the course of investigation. Therefore, the matter needs examination at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stock of 1.2.2007 ? As per the investigation stock on 3.2.2006 was 87.65 MTs and during the course of investigation and in the impugned period several times tock taking was done which is enumerated as under: (i) On 29th June 2006 the stock was 190 MTs. On 17.2.2006 stock was of 78 MTs and on 31.12.2006 stock of cement was 180 MTs. The stock of cement on 2.3.2007 was 60 MTs and on 31.3.2007 it was 180.00. I further find that the appellant has recorded clearance of 18,566 MT in the impugned period and it is mentioned that during the period Feb. 2006 to Dec, 2006 the total manufacture of cement has shown 18.369 MTs as per the statutory records. I find that during the said impugned period, the appellant has also cleared 18,566 MTs of cement invoice. If the maximum production during the period Jan 2007 to March 2007 is taken as per the maximum annual capacity, the same works out to 8,500 MTs whereas during the said period also the appellant has cleared 7,130 MTs of cement through invoices. If the maximum capacity is considered then also there is a difference to 1400 MTs only whereas allegation that appellant has cleared a quantity of 16,243 MTs as per loose slips. (ii) The adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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