TMI Blog2018 (2) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... made for loading can only become an additional support to main evidences like proof of evidence for transportation of the finished products and evidence of realisation of the value relating to the sale of any alleged clandestinely removed goods. It is very difficult for the department to lay hands on each and every link in the chain of the modus operandi involving clandestine clearances. However, total absence of any evidence or for that matter evidences available on for a limited period, cannot be extrapolated to a presumption that such activity had been on-going for a larger period - the available evidences as capsuled in the annexures to the SCN is limited to a few months only viz. from April, 2006 to June, 2006. Any confirmation of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the assesse and oral evidences by the persons concerned on these documents etc., to project the alleged clandestine removal of CTD bars to the extent of 15249.20 MTs. The proceedings have culminated in the impugned order dated 18.09.09 followed by a corrigendum dated 27.10.2009, holding that 13938.152 MT of CTD bars have been remanded without payment of duty and differential duty liability of ₹ 4,53,60,632/- has been confirmed, against demand of ₹ 5,04,13,143/- proposed in the SCN with interest liability thereon has been confirmed. Equal quantum of penalty has been imposed under Section 11 AC of CEA. Penalties have also been imposed under Rule 26 of CER, on Shri V. Kuppusamy, MD of the assessee company and on Shri K. Bhask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Even as per the annual capacity certified by the department, the production works out only to 598.20 MT during 1998. In fact, the average monthly production for the period 2001-02, 2005-06 is 539.47 MTS. Only. iv) The alleged receipt of unaccounted inputs given in Annex-A3 to the SCN covers only the period from 01.05.2006 to 13.06.2006. However, the department has presumed unaccounted receipt of inputs for the entire period included in the SCN. v) In Annex-A4 also details of clearances of CTD bars by the assessee to certain buyers were also only for the period 01.04.2006 to June, 2006. vi) With regard to Annex-A6 of the SCN, the production alleged therein has been calculated only on the basis of the fees paid to the labo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neswara Steels Pvt. Ltd., and Sri Vinayaga Alloys Pvt. Ltd., had approached the Settlement Commission and admitted the duty liability vide Final Orders No.57 58/2007 dated 25.09.2007. Hence, the appellant cannot deny receipt of raw materials from the suppliers. ii) As recorded by the adjudicating authority in para 13.03 of the order, details regarding clearances of MS ingots by Sri Vela Smelters to the assessee were obtained from the computer printouts, which were taken out by the Govt. Examiners, Hyderabad, which corroborate details of unaccounted MS ingots received by the assessee. iii) As analysed by the adjudicating authority in para 14.01 the entries of charges to labour contractors for the works by them clearly brings out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te entries are available for loading melting scrap , there is no specific indication of loading of CTD bars. In any case, in our view, the recovery of such payments made for loading can only become an additional support to main evidences like proof of evidence for transportation of the finished products and evidence of realisation of the value relating to the sale of any alleged clandestinely removed goods. 6.2 No doubt, an inference can be drawn for any quantity of unaccounted raw materials that would have been received by such manufacturer of CTD bars. However, we find from the annexures to the SCN, that such information thereof is available only for the months of April 2006 to 13.06.2006. This is also evidenced from para-10.02 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period April, 2006 to June. 2006. 6.4 In the departmental appeal (E/710/2009) there is a grievance that the adjudicating authority has not taken stock of the letter pad which allegedly contained details of alleged clearances, however those details are again available only for the period April and May, 2006. 6.5 In the circumstances, we find that the demand will necessarily be restricted to the period for which evidences are available as per in the annexures to the SCN. The matter then needs to be re-adjudicated keeping all these aspects in mind. We order accordingly. In such denovo proceedings the adjudicating authority will take into account the contentions of the appellant in para-3 and also of the Ld. AR in para-4 (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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