TMI Blog2018 (11) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority is that the buyers reflected in some of the invoices were found to be non-existing. We find that same cannot be adopted as a reason for arriving at findings of clandestine removal inasmuch as such sales were effected on the basis of Central Excise invoices. It is well settled law that the onus to prove the clandestine removal is upon the Revenue and is required to be discharged by production of sufficient and positive evidence - In the present case there is no evidence at all produced by the Revenue to show that the appellant had clandestinely manufactured and cleared their final product - demand not sustainable. Appeal allowed - decided in favor of appellant. - E/902-903/2011-EX[SM] - FINAL ORDER NOs. 7248 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the appellant along with confirmation of interest and imposition of identical amount of penalty. In addition penalty of ₹ 1 lakh stands imposed upon Shri Ritesh Agarwal, Director of the manufacturing unit. 4. After hearing both the sides duly represented by Ms Stuti Saggi (Advocate) for the appellants and Shri Sandeep Kumar Singh (Deputy Commissioner) AR for the Revenue it is seen that the allegations are mainly based upon the electricity consumption, the project report furnished to bank for procurement of loan, capacity of machine installed in the factory, statements of Director as also the other workers of the factory. The Adjudicating Authority has compared the production of previous years with the production of 2009- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t above to be the standard production for a year. However one other important fact for consideration is that the electricity consumption during the years 2005-06 to 2008-09 has not remained constant. And it is not logical to conclude that the same quantities of glasses were manufactured by using lesser quantity of electricity in some years. As such I propose to consider the production of 158760 kgs of glass for the year when maximum electricity was consumed for running two thermoforming i.e. 2008-09 and calculate the production accordingly for previous years. It is also worth noting that, as reported in the defence reply of the party no. 1 and reproduced above, the reported production during the year 2009-10 was 270690 kgs of glasses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Tribunal. One such reference can be made to the Tribunal decision in the case of Commissioner of Customs and Central Excise, Indore vs. Venus Alloy Pvt. Ltd. reported at 2016 (337) E.L.T. 561 (Tri. Del.). I note that apart from such calculations, there is no evidence produced by the Revenue to reflect upon the clandestine activities of the appellant. 6. The observations of the Adjudicating Authority is that the buyers reflected in some of the invoices were found to be non-existing. We find that same cannot be adopted as a reason for arriving at findings of clandestine removal inasmuch as such sales were effected on the basis of Central Excise invoices. If the buyers subsequently could not be traced by the Revenue, the same wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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