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TMI Blog2019 (1) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... the intelligence by the officers of the DGCEI, a search was conducted in the factory of the appellant on 12.02.2013 and a stock taking were conducted for raw material, quantity and value of work-in-progress and finished goods. It is also alleged that the appellants were availing the Cenvat credit on the bogus purchase invoice without physically receipt of the raw material. After stock taking of the goods, i.e. input, WIP and finished goods, it was revealed that there was a variation with respect to stocks under WIP at the 9 manufacturing plants of the appellants. The statement of Sh. Ashok Jindal, DGM (Accounts) was also recorded during the process of investigation. Subsequent to investigation, a show cause notice was issued to the appellants, which culminated into the passage of aforesaid impugned order. 3. At the time of personal hearing, the Ld. Advocate for the appellants submits as under:- 3.1 The stock taking of the material at the 9 manufacturing plants were taken on the basis of stock and work-in-progress statement made by the company as per the manufacturing plant. This was done as it was not possible to measure amount of stock/raw material under process in various reac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President (Technical) dated. 08.08.2013, it is not evident that they have accepted the clandestine removal of the goods. In fact, Sh. Yatish Kumar Bansal in his statement dated. 23.02.2013 has stated that "on being asked about the specific reasons for stock of WIP goods found short during physical stock taking have to state that on making enquiry from the production staff of this unit, I admit to there is a probability that these WIP goods were utilized by us in manufacture of finished goods which were not accounted for in our records and the same were cleared without payment of Central Excise duty." 3.8 It was stated by Sh. Yatish Kumar Bansal in his statement dt. 08.08.2013 that he tried to explain the reasons of missing WIPs as under:- "1. In case of 6-APA and Dicloxacilin Sodium, we have to state that the said WIPs had been shifted from stores to scrap yard for incineration and the same had been incinerated. 2. In case of Centriasone Sodium, non sterile the material was lying in the sterile area at the time of search. Q.13: Why the above said facts were not brought to the notice of the visiting staff at the time of search on 23.02.2013? Ans: The facts concerning the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce could not be taken on record by adjudicating authority without forming the opinion regarding the admissibility of the evidence. Therefore, the statements recorded and relied upon by the adjudicating authority are not an admissible piece of evidence. The reliance in this regard is placed on the following case laws: (a) CCE vs. Balajee Perfume - 2017 (358) ELT 87 (Delhi) (b) SK Garg & Sons vs. CCE - 2017 (348) ELT 508 (Tri. Chan.) 3.14 Further, the case of clandestine removal cannot be confirmed solely on the basis of even inculpatory statements in absence of corroborating evidence. The reliance to this effect was placed on the case of Davinder Sandhu Impex Ltd. vs. CCE - 2016 (337) ELT 99 (Tri. Del.). 3.15 The clandestine removal, which is a very serious allegation, cannot be made only on the basis of assumptions and presumptions without being substantiate by a complete chain of corroborative evidences. The reliance, to prove clandestine removal, is placed on the cases of M/s R.A. Casting Pvt Ltd vs. CCE, Meerut-I - 2009 (237) ELT 674 (Tri. Del.) and M/s Arya Fibers Pvt Ltd vs. CCE - 2014 (311) ELT 529 (Tri.). In the case of M/s R.A. Casting Pvt Ltd (supra), this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority while confirming the demand. 5. We have considered the rival submissions and also perused the appeal records. 6. The issue before us is to decide as to whether the adjudicating authority was correct in confirming the demand raised against the appellants. It is evident from the records of the case that the stock taking was conducted by visiting officers of the DGCEI with respect to a stock, WIP and finished goods. The samples were also drawn at the time of initial search and more discrepancies were reported at the first instance. When the officers visited next time for collection of 'adequate sample', another stock taking was also conducted and the shortage was alleged with respect to aforementioned products. 7. It was presumed that as the stock was found to be short, the same could have been used in the manufacture of finished products and clearance thereof without payment of duty. The adjudicating authority also relied upon the statement of Sh. Y.K. Bansal that when the stock which was not found to be there in WIP, could have been utilized manufacture of finished goods and clandestine removal thereof without payment of duty, but it is evident from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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