TMI Blog2018 (7) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... & ST, Patna [2012 (5) TMI 525 - CESTAT, KOLKATA] observed that the charge of clandestine removal of goods cannot be substantive only on a single parameter i.e. Input Output ratio. Appeal dismissed - decided against Revenue. - E/71213-71216/2013, CO-76824-76827/2014 - FO/75841-844/2018 - Dated:- 15-3-2018 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER Sri S.Guha, AC(AR) for the appellants/applicants. Sri Ravi Raghavan, Advocate Ms. S.Mundra, CA for the respondents. ORDER Briefly stated the facts of the case are that the assessee is engaged in the manufacture of Calcined Petroleum Coke (CPC) classifiable under Chapter 27 of the Central Excise Tariff Act. They received Raw Petroleum Coke (RPC) from M/s. IOC Limited, Baraun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e failed to produce any evidence to substantiate that the goods were not cleared clandestinely. The relevant portion of the findings of the Commissioner (Appeals) is reproduced below : (iv) The contention of the Appellant is that the department has not produced any cogent or positive evidence to prove that they have clandestinely cleared the goods without payment of duty. It was also submitted that they filed revised returns as the earlier returns were wrong being prepared by their newly appointed staff. I find that the proceedings were initiated on the basis of input-output norms of 1.3:1 vide the relevant Show Cause Notice however no basis or grounds to justify such ratio is mentioned anywhere. The only reason given by Ld. Adjudicato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.XAP-47 against Order-in- Original No.04/MP/ADC/2012 dated 25.01.2012 is concerned, there is additional ground of confirmation of demand of ₹ 31,129/- only on the ground of wrong calculation of duty which has not been disputed by the Appellant at any stage; hence same is recoverable alongwith interest only. 5. It is well settled that the burden of proof on the charge of clandestine removal of goods lies with the Revenue. It cannot be discharged in a casual manner. In the present case, I find that the charge of clandestine removal is raised on the basis of the E.R-I Returns. For the Input/Output ratio, no enquiry was conducted. The Tribunal in the case of Hindustan Coca cola Beverages Pvt Ltd Vs. CCE ST, Patna observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai-II, 2000 (177) E.L.T. 659. The question that we are called upon to answer is whether question (A) as formulated considering the judgment in Oudh Sugar Mills Ltd. (supra) arises from the order. In the instant case, though statements were recorded they were in respect of the norms which the respondents had set for itself. The Tribunal recorded a finding that the appellants herein had based the purported evasion of duty on shortfall in production and this was not permissible. We cannot find fault with the findings recorded by the Tribunal on that count 3. In so far as question (B) is concerned, in our opinion, Bhoormal s case 1983 (13) E.L.T. 1546 (S.C.) would not be applicable. The test to be satisfied is in terms of Oudh Sugar Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in clandestine manufacture and removal when they are entitiled to cash refund of the duty paid through PLA. 4.5. In view of the above observations and settled proposition of law, there is nothing on record to indicate that the appellant assessee had infact manufactured the final products out of the inputs on the basis of input-output ratio. As such, in the light of various decisions relied upon by the goods, the impugned order is not sustainable. Accordingly, appeal filed by the appellant is allowed with consequential relief, if any. 7. In view of the above discussions, I do not find any reason to interfere with the Order of the Commissioner (Appeals). Accordingly, the appeal filed by the revenue is dismissed. Cross Objections g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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