TMI Blog2018 (11) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, when there is no clarity coming out from the document and because in the Lorry Receipt, the description is in respect of finished goods i.e. SOG, but the acknowledge receipt shows the goods received by the recipient is raw material, therefore, in my considered view, the benefit of doubt must go to the assessee - in absence of any such evidence and the discrepancy in the Lorry Receipt, it cannot be concluded that the appellant have clandestinely cleared their finished goods. The department could not make out a clear case of clandestine removal beyond doubt against the appellant - appeal allowed - decided in favor of appellant. - Appeal No. E/11663/2015-SM - A/12576/2018 - Dated:- 13-11-2018 - Mr. Ramesh Nair, Member (Judicial) Shri Ishan Bhatt, Advocate for the Appellant Shri K.J. Kinariwala, Assistant Commissioner (AR) for the Respondent ORDER Per: Ramesh Nair The brief facts of the case are that appellants M/s. Standard Oil and Grease (SOG for short) are a partnership firm engaged in the manufacture of lubricating oils and petroleum oils at their factory located in Silvasa. M/s Standard Grease (SGS) is a sister firm of the appellants locat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived from HPCL directly to third party customers without physical receipt of goods in the factory based on entries in the Tanker Register (TLR) obtained from premises of transporter 2,01,78,241/- 2. The Ld. Commissioner, Central Excise, Vapi vide order-in-original dated 31.01.2012 adjudicated the show cause notice dated 17.05.2010 wherein he confirmed the demand of duty under Annexure I-A, I-B, II-A and II-B (Sr. No. 1 to 5 above) and dropped the demand under Annexure III (Serial No. 6 above). Being aggrieved by the order-in-original dated 31.01.2012 to the extent that the demand of duty was confirmed, the Appellants filed an appeal before the Tribunal vide Appeal No. E/500-505/2012. The said appeals were decided by the Tribunal vide order dated 27.02.2014 wherein the Tribunal set aside the demand under Annexure I-A II-A (Serial No. 1 and 3 above), being demand of duty on the clearances of raw materials to sister units without payment of duty/reversal of Cenvat credit. However, with respect to the demand under Annexure I-B II-B (Serial No. 2, 4 5 above) amounting to ₹ 36,18,970/-, Tribunal vide order dated 27.02.2014, remanded the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 II-B Part I Demand on alleged clearance of finished goods to TGIPL without payment of excise duty based on entries in Tanker Register (TLR) obtained from premises of transporter 21 Rs.19,47,295/- Demand of ₹ 4,07,077/- in respect of 4 clearances dropped. Remaining confirmed 3 II-B Part 2 Demand on alleged clearance of finished goods to SGS without payment of excise duty 6 Rs.12,11,309/- Dropped entirel He submits that the demand on remaining 21 clearances is not maintainable as the same are clearances of raw materials and not finished goods. He submits that it has been held that by this Tribunal in the appellant s own case that demand of clearances of raw material to sister unit is Revenue neutral in nature and not maintainable. The entire 21 clearances of raw materials were made to sister units. He submits that as regard to demand of ₹ 4,60,366/- under annexure I-B, arises out of entries in Note Book No. 119, recovered from the premises of the appellant where it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment was affirmed by the Hon'ble Gujarat High Court reported at 2014 (308) ELT 655 (Guj.) wherein the department s appeal against the aforesaid order of the Tribunal was dismissed. The department further filed appeal before the Hon'ble Supreme Court against the judgment of Hon'ble High Court which was also dismissed by the Hon'ble Supreme Court in its order reported at 2015 (319) ELT A117 (SC). He also relied on the judgment of Hon'ble High Court of Jharkhand in the case of Balashri Metals Pvt. Limited vs. UOI 2017 (345) ELT 187 (Jhar.). He submits that the ratio of the above judgments squarely applicable in the present case as none of the conditions required for holding the charge of clearances as clandestinely is fulfilled by the department. Accordingly the impugned order is liable to be set-aside. 4. Shri K.J. Kinariwala, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterated the findings of the impugned order. 5. I have carefully gone through the submissions made by both the sides and perused the record. I find that much water has flown on the entire case and against the huge demand raised in the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, the dispute between the department and the appellant is that whether the 21 clearances are of raw material or finished goods. 6. As regards the demand on 4 clearances mentioned at Serial No. 1 in Para 3 above, I find that on perusal of Note Book 141 seized from the premises of recipient unit (SGS) did record the description of SN-180 or SPP 450, which is of raw material. Therefore, in this fact, the charge of the department that appellant cleared finished goods under these 4 clearances is not sustainable. 7. Regarding the 17 clearances covered under demand shown at Serial No. 2, in table given in Para 3 above, the department has solely relied upon the transporters Lorry Receipts wherein the description of goods mentioned as SOG which is for finished goods. However, on perusal of the Lorry Receipt, I find that the acknowledgment given by the recipient unit clearly mentioned that they have received raw material as description of raw material such as SN-500, SN-180 and SPP-450 mentioned in the acknowledgement stamp. In this position, when there is no clarity coming out from the document and because in the Lorry Receipt, the description is in respect of finished goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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