TMI Blog2018 (12) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence, is well established - Once this is the situation, irrespective that the Central Excise duty as demanded stands paid, but the fact remains is that there is no evidence for alleged shortage. Mere statement as relied upon is highly sufficient. Also that the same has been paid well before the issuance of SCN. Resultantly, proviso to Section 11AC of the Act is applicable vide which the appellant was liable to pay the penalty only to the extend to 25% of the Central Excise duty involved. Penalty as imposed upon The Directors - Held that:- Though the Directors have been alleged to have not disclosed the facts and alleged short receipt of input to the Department which came to the notice of Department only at the time of visit but in view of above discussions, the cenvat credit as was denied by the Department on the input of the appellant, has been allowed, no mensrea of tax evasion can be attributed to the appellant Directors - keeping in view that the alleged short payment of Central Excise duty since has been paid by them and has not been demanded back, there is no infirmity in imposition of penalty upon the Directors - penalty upheld. Appeal allowed in part. - Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - upon the Company and the penalty of ₹ 2 lakh each upon the Directors thereof (the appellants of the remaining two Appeals) was imposed. Being aggrieved Appeal was preferred before Commissioner(Appeals) who vide the impugned Order has confirmed the same. Being aggrieved the Company as well as its Directors are before this Tribunal. 3. I have heard Ms. Rinki Arora, Ld. Advocate for the appellant and Mr. K. Poddar, Ld. DR for the Department. 4. While submitting on behalf of the appellant Ld. Counsel has conceded for the confirmation of the total amount of Central Excise duty i.e. of ₹ 33,96,250/- (25,52,486 + 8,43,764) and that the same has already been paid. The Appeal has mainly been confined qua disallowing the availment of cenvat credit involved on short received quantity of 16887.830 mt of coal and the penalties imposed upon the Company and both the Directors thereof that though the Central Excise duty has not been contested here and has already been deposited but the fact remains is that the clandestine removal of the final product has been alleged merely on the basis of shortages detected at the time of visit of the officers and by observing that the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he serious allegations. Once, the Central Excise duty on the observed shortage has been confirmed, the allegations of clandestine removal has been confirmed that too on the basis of appellants own admission, no more evidence is required for proving the intent of the appellant to evade the duty, no question of doing away or reducing the penalty as prayed by appellant at all arises. Appeal is accordingly prayed to be dismissed. It is submitted that Commissioner(Appeals) has rightly relied upon the decision of Supreme Court in the case of Union of India V. Dharmendra Textile Processors 2008 (231) ELT 3 (SC) 6. After hearing both the parties I observe and hold as follows: In view of the amount of entire Central Excise duty to have already been paid and to have not been demanded back, the scope of the SCN has been reduced to adjudicate about availment of cenvat credit on the raw material and about imposition of penalty of equal amount as that of central excise duty on the Company and penalty of ₹ 2 Lakh each on 2 of the Directors thereof. As far as the availment of cenvat credit is concerned, I observed that the appellant was sending raw coal to washeries for removal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s its Directors is concerned. The allegations of clandestine removal are serious. 8. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.) as also Tribunal s decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I 2016 (335) ELT 297 (Tri.-Del.), CCE ST, Raipur Vs. P.D. Industries Pvt. Ltd. 2016 (340) ELT 249 (Tri.-Del.) and CCE ST, Ludhiana Vs. Anand Founders Engineers 2016 (331) ELT 340 (P H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. 9. Once this is the situation, irrespective that the Central Excise duty as demanded stands paid, but the fact remains is that there is no evidence for alleged shortage. Mere statement as relied upon is highly sufficient. Also that the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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