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TMI Blog2018 (1) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Tariff Act, 1985. The Central Excise officers visited the factory of the assessee-appellant's and other parties/brokers through whom soya crude oil was supplied. During the course of investigation, it was observed that the assessee-appellant had procured 2424.875 Mt of Soya Crude Oil, but had not accounted for the same in the statutory records. It was further observed that such un-recorded receipts were used in the manufacture of Refined Soya Oil, which were removed from the factory without payment of Central Excise duty. On the basis of such investigation, the Department initiated show cause proceedings against the assessee-appellant, seeking confirmation of duty demand of Rs. 24,65,831/- along with interest and for impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies made in the Dalali register (Brokerage register) of Shri Vineet Agrawal of M/s. Agrawal & Co. and of Shri Manohar Garg. He submitted that only on the basis of brokerage register and statement of Shri Vineet Agrawal, demand cannot be made. He submitted that the Revenue has to prove the receipt of Crude Oil on the basis of corroborative evidence for purchase of said crude soya oil and the demand can be made only on the basis of evidences of manufacture and clearance of Refined Soya Oil from that quantity of Crude Soya Oil. Shri Vineet Agrawal was even called for cross-examination, but he did not appear before the adjudicating authority and thus, his brokerage register and statement cannot be relied upon. He further submitted that on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chem through M/s. Sheetal Enterprises, he submitted that they have never received the said quantity of Crude Soya Oil nor have they manufactured or cleared any refined oil out of the said quantity. No payment on this account was ever made to M/s. Sonic Bio-chem. Neither there is any transport document nor any confirmation from the record of M/s. Sonic Bio-chem regarding payment of such alleged purchase. He submitted that since there is no corroborate evidence, the demand on 15.08 MT Crude Soya Oil is also liable to be dropped. He relied the judgments in case of Krishna & Co. Vs. CCE - 1998 (97) ELT 74 (Tri.) and Premier Packaging Ltd. Vs. CCE - 1986 (26) E.L.T. 333 (Tri.) in support of his submission. 5. On the other hand, the ld. DR appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Soya Crude Oil, clearance of goods to the buyers who allegedly have received the goods produced from such suppressed receipt of Soya Crude Oil. However, references of no such buyers of goods have been shown in the show cause notice nor there is any receipt of consideration by the assessee-appellant or transportation of Soya Refined Oil from appellant's factory. The allegation of removal has to be proved by direct physical evidence, which is absent in this case. The mere fact of appellant No.2 having paid an amount of duty on 324.215 Mt cannot be considered as conclusive evidence of receipt of Soya Crude Oil clandestinely and its removal after refining without payment of duty. Also the entries of removal of Soya Crude Oil made in pencil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of Refined Soya Oil and removal of same without payment of duty or any buyer. Therefore, no demand can be made as held in case of Premier Packaging Ltd. Vs. CCE - 1986 (26) E.L.T. 333 (Tribunal) and Oudh Sugar Mills Ltd. Vs. Union Of India - 1978 (2) E.L.T. (J 172) (S.C.). In absence of any of such evidence, I am of the view that no demand can be made against the Appellant No. 1. 8. In view of my above discussion and analysis, I am of the considered opinion that the demands made against the Appellant No.1 and penalties imposed upon Appellant No. 1 and 2 are not sustainable and are required to be set aside. Accordingly, I set aside the impugned order and allow both the appeals in favour of the appellants with consequential reliefs, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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