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TMI Blog2018 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of the Order-in-Appeal No. IND/EXCUS/001/APP/483-484/17-18 dated 29.12.2017. 3. The brief facts of the case are that the appellant/ assessee, M/s Varun Enterprises, Indore, having Central Excise Registration No. AADHN5568HXM001, are engaged in the manufacture of refined lead ingots, lead ingots and litharge falling under Chapter 78 of the Schedule to Central Excise Tariff Act, 1985, by using raw materials such as old and used batteries procured from 'Kabadies'. Acting on the intelligence that the appellant/ assessee is indulging in clandestine removal of goods using "Kacha Parchi" i.e. rough slips, the searches were conducted at the factory and residential premises of the proprietor of firm, namely, Shri Narender Aggarwal on 16/7/2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 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-super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer's end, or transporter and payments from buyer etc. 9. Ld. Advocate on behalf of the appellant/assessee also submitted that out of 19,60,580.70kgs of scrap the quantity of 9,25,749.615 kgs of total lead was assumed to be recovered considering the percentage yield to be 45% of this quantity. Out of 9,25,749.615kgs, the quantity of 4,86,037.500 was found cleared clandestinely as per recovered record. For balance quantity of 4,39,712.115kgs, there was no evidence of clandestine clearance. And, therefore, the Commissioner(Appeal) has confirmed the demand of Rs. 74,54,743/- involved on the quantity of 9,25,749.615 and dropped the demand of Rs. 61,95,720 involved on quantity of 4,39,719.65. The Commissioner(Appeal) has observed in his order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018(360) ELT 29(All.) 11. Accordingly, Ld. Advocate prayed for allowing of the appeal filed by the appellant and rejecting the appeals filed by the Revenue. 12. Ld. DR on behalf of the Revenue has supported the impugned order to the extent of demand confirmed, however, contested the demand dropped in the impugned order. It was submitted that in this case there is an admission from the proprietor of the assessee/appellant and also payment of Rs. 60 lakhs was made on voluntary basis of accepting the clandestine removal of the goods. Therefore, he is of the opinion that the commissioner(Appeal) has erred in partially dropping the demand and partially confirming the demand in the impugned order. 13. Against this background, we have heard L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to identical parties; (e) Receipt of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods as alleged in the two Show Cause Notices. Regarding the seizure case, we find 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. It is also on record that Department has allowed the provisional release of seized goods on bank guarantee and Bond. These provisionally released seized goods have been released subject to their entry in the statutory records. In such a situation there could not be any scope of clearance of seized goods without payment of duty. 17. So far as the second show cause notices is concerned, we find that the same has been issued by and made answ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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