TMI Blog2019 (6) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... no investigation to observe whether there was inwards transportation of principal raw materials required for the manufacture of cement. No discrepancy was found in the stock of finished goods as well as in the stock of raw materials. Under the Excise Act, the Excise Duty is leviable on manufacture or production of excisable goods, therefore for levying the Excise Duty, it is necessary to establish that the excisable goods were produced/manufactured by the assessee concern and for asking Section 11A, it is necessary to establish that the excisable goods are removed clandestinely without payment of duty which the Revenue in the case has failed to establish. The Excise Duty cannot be levied merely on the basis of assumptions or presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, availed the exemption as small scale manufacturer under Notification No. 8/2000-CE dated 01.03.2000, Notification No. 8/2001-CE dated 01.03.2001, Notification No. 8/2002- CE dated 01.03.2002 and Notification No. 8/2003-CE dated 01.03.2003. These exemption Notifications provided for full/partial exemption from duty upto a clearance value of ₹ 1 crore provided the clearance value did not exceed ₹ 3 crore in the previous financial year. In 2001-02 the Appellant started paying duty from 15.09.2001, in 2002-03 from 7.12.2002 and in 2003-04 from 19.9.03. Subsequently, appellant availed MODVAT Credit on Clinker and HDPE Bags which were used for packing cement. MODVAT Credit was not availed on any other inputs/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent. 6. It is also the case of the appellant that the alleged quantity of cement cannot be manufactured using the quantity of raw materials recorded in the statutory records. The appellant states that by accounting the some quantity twice, the department has enhanced the annual value of clearance for the year 2002-03 and denied small scale exemption for 2003-04. He strongly argued that neither any senior officer of the factory of the office nor any employee actually maintaining the account of the factory were called to explain the seized records. 7. The Ld. DR justified the impugned order and relied upon the following decisions:- (i) Gopal Industries Ltd. Vs. Commissioner of C. Ex., Indo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the period of dispute i.e. from November, 2000 to March 2004, they have consumed 19,237.457 M.T. of raw materials to manufacture 18,153.450 M.T. of cement which is in consonance with the raw materials consumed and output ratio mentioned. The detail has also been tabulated by the appellant as below:- Year Consumption (Raw Materials) Cement mfg. Qty. of Cement Nov. 00- -- -- March 2001 3780.657 3691.000 2001-02 7368.50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty which the Revenue in the case has failed to establish. The Excise Duty cannot be levied merely on the basis of assumptions or presumptions. 14. We find that the Hon ble High Court of Allahabad in Continental Cement Company Vs. Union of India as reported in 2014 (309) E.L.T. 411 (Allh.) has observed thus: 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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