TMI Blog2018 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... Department, in the light of the observations made by Hon’ble High Court, to make a fool proof case for the clandestine removal of the goods as alleged in the two Show Cause Notices. Seizure of goods - Held that:- Only the excess stock has been found in the factory. But the same was not removed and was lying there itself. This in itself will lead into inference that such and intention to remove the goods in a clandestine manner - there could not be any scope of clearance of seized goods without payment of duty. Second SCN - Held that:- The same has been issued by and made answerable to Principal Commissioner of Indore and, however, the adjudication was done by the Additional Commissioner without any indication that the Adjudicating Authority has changed during the course of adjudication proceedings. This in itself would have been reason to drop the demand raised by the Show Cause Notice. However, the appellant has not raised this plea in the appeal, and therefore, the same is ignored. Appeal allowed - decided in favor of appellant. - Appeal No. E/51186, 52737-52738/2018-DB - Final Order No:53386-53388/2018 - Dated:- 13-12-2018 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were adjudicated by the Additional Commissioner, Central Excise(HQ) Indore, vide a common Order-in-original No. 84-85/ADC/CEX/IND/2016-17 dated 27/2/2017, vide which the demands were confirmed as per the show Cause Notices. On appeal, vide the common impugned order, Ld. Commissioner(Appeal) partially confirmed the demand as upheld by the Lower Adjudicating Authority, and gave partial relief to the appellant/assessee in respect to the amount mentioned in the impugned order. Against the demand confirmed by the impugned order the appellant/assessee is in appeal and against the demand dropped by the impugned order, Revenue is in appeal before us. 6. Ld. Advocate on behalf of the Appellant would submit that the demand of ₹ 1,36,50,463/- raised in the SCN and confirmed in Order-in-Original was based on the entries made in note pads, writing pads and various number of pocket diaries recovered from the residential premises of the proprietor/appellant. The Department, after scrutiny of the aforesaid documents and recording of the statement of the proprietor and Manager-Cum-supervisor of the appellant, concluded that the appellant had clandestinely manufactured and cleared the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the scrap of 1960580.700 kgs would have resulted into production of 882261.351 kgs of Lead assuming the yield to be 45 % without any justification for the same. 10. It is also submitted that Ld. Commissioner(Appeal),while observing as above has confirmed the part of demand, adopting the same reasoning. When every detail was available in diaries, the Department should have collected cogent and tangible evidence rather than confirming the demand on assumption and presumption. The scrap purchased itself was not verified and also yield of 45 % was assumed without any basis. It is his submission that based on the reasoning adopted by the Ld. Commissioner (Appeal) in the impugned order, the entire demand should have been set aside by him which appears to have not been done. Ld. Advocate relied upon the following case laws in support of his contention; (1) Arya Fibres Pvt. Ltd. vs. Commissioner of C. Ex., Ahmedabad-II , reported as 2014(311) ELT 529(Tri.-Ahmd). (2) Continental Cement Company vs. Union of India , reported as 2014(309) ELT 411(All.) (3) Mittal Pigment Pvt. Ltd. vs. Commissioner of Central Excise, Jaipur , reported as 2018(360) ELT 157(Tri.-Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sale proceeds, whether by cheque or by cash, of such goods by the manufacturer or persons authorized by him; (f) Use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) Statement of buyers with some details of illicit manufacture and clearance; (h) Proof of actual transportations of goods, cleared without payment of duty; (i) Links between the documents recovered during the search and activities being carried on in the factory of production; etc. 15. Reliance is placed on the decision in the case M/s Continental Cement Company, M/s Mittal Pigment Pvt. Ltd. and M/s Arya Fibres (supra). In the case of M/s Continental Cement Company , Hon ble High Court has laid down that there must be clinching evidence for establishing the clandestine clearance and the same cannot be based on assumption and presumption only. Hon ble Court laid down certain parameters in this regard. Relevant para of the decision of the Hon ble Court supra is extracted as under 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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