TMI Blog2018 (9) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... re this allegation is not sustainable - demand do not sustain. Clandestine removal - it was alleged that Unit-II has clandestine cleared the goods without payment of duty - Held that:- The duty on account of clandestine clearance of PTY of 4015.25 Kg of ₹ 3,11,785/- is payable by the appellant-assessee to the tune of ₹ 25,442/- as the appellant has failed to produce any invoice on record - demand confirmed. Appeal allowed in part. - E/2849/2009-EX (DB), E/2701/2009-EX (DB) - 63178-63179/2018 - Dated:- 24-9-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr.Anil G.Shakkarwar, Member (Technical) For the Appellant : Shri G.M.Sharma, AR and vice versa For the Respondent : Shri Vikrant Kackria, Advocate and vice ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Eight Thousand Two Hundred Forty Five only) is liable to be recovered from M/s.Woolways India Ltd.,217,Industrial Area-A, Ludhiana. Therefore, I confirm recovery of CENVAT Credit of ₹ 7,48,245/- from M/s.Woolways India Ltd.,217,Industrial Area-A, Ludhiana under Rule 12 and Rule 14 of erstwhile Cenvat Credit Rules, 2002 and Cenvat Credit Rules 2004 respectively as applicable during the relevant time read with Section 11A of the Central Excise Act. Rest of demand is vacated. ii. Imposed a penalty of ₹ 7,48,245/- (Rupees Seven Lacs Forty Eight Thousand Two Hundred Forty Five only) upon M/s.Woolways India Ltd.,217,Industrial Area-A, Ludhiana under Rule 13 of Cenvat Credit Rules, 2002 and Rule 15 of Cenvat Credit Rules, 2004 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proof of transportation of goods or admission of receipt of goods by any buyer etc. Also that the so called challans under the cover of which goods were alleged to have been cleared, were found intact in the challan book, hence there was no clandestine clearance. It was also submitted that incriminating documents had been planted by Shri Umesh Kumar Syal, who had left the job immediately after the raid and never turned up for cross examination. He also submitted that the statement of Shri Anil Jaiswal and Shri Hardeep Kumar whose statements had been relied upon in the show cause notice has been retracted during cross examination. Therefore, the demand of ₹ 2,71,853/- on account of clandestine removal of a quantity of 43.238 MT by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey had explained that PTY had been used in the 47.903 MT of defective knitted cloth, which they had sold. The appellant assessee never asked to produce any such document as there was no removal of PTY, therefore, the demand cannot be confirmed. 6. On the other hand, Ld. AR opposed the contention of the Ld.Counsel and submitted that the adjudicating authority has not appreciated the fact that shortage has been arrived at from the statutory record of the appellant-assessee and the revised figures have been accepted without any verification and remains unsubstantiated. The assessee has a clear motive of substituting PTY with PY as they availed exemption from VAT showing stock transfer from Unit-II to Unit-I. The figures of opening balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements are in favour of the appellantassessee, therefore, these statements cannot be the basis for denial of credit. We further take note of the fact that the Revenue has relied upon the challans issued for clearance of PTY by Unit-II wherein the description of the goods is written PY while the invoices have been issued in the name of Unit No.1. Such situation has been explained by the assessee- appellant during adjudication, it was found that on the basis of challans, Unit-II cleared the goods to the job worker of Unit No.I, therefore, invoices issued in the name Unit-I. We further note the fact that the job workers during cross examination have stated that the PTY had been received for job work only. Therefore, it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued. 3.68 In view of the above, I hold that clandestine removal of 4015.25 kg of PTY valued at ₹ 3,11,785/- only is established. The duty involved on this quantity of yarn held to have been removed clandestinely works out to be ₹ 25,442/- .. 11. We do agree with the observation made by the adjudicating authority in the impugned order, therefore, we hold that the duty on account of clandestine clearance of PTY of 4015.25 Kg of ₹ 3,11,785/- is payable by the appellant-assessee to the tune of ₹ 25,442/- as the appellant has failed to produce any invoice on record. Therefore, the said demand is confirmed. 12. In view of above observation, the following order is passed:- (a) The demand on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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