TMI Blog2019 (6) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... racting confession. Further, consistently Courts have held that duty demand cannot be sustained solely on the basis of statement recorded during the course of investigation in the absence of corroborative evidences in the form of consumption of electricity, purchase of raw-material, electricity consumption, manpower, capacity of the factory to produce the alleged quantity, mode of transportation and sale of goods, receipt of sale proceeds and other documentary evidences. Burden to prove - HELD THAT:- It is a settled law that allegation of manufacture and clandestine clearance, the burden lies on the Department to prove the charge against the assessee with proper and cogent evidence but in the present case the Revenue has not conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the goods on payment of excise duty. The officers of the DGCEI, Hyderabad Region conducted investigation at the end of M/s. Shivam Smelters Pvt. Ltd., Gajwel Manda, Medak District and also residence of the Managing Director Shri. Govind Kumar Agarwal on 04.03.2011 and recovered various documents. As part of the investigation, statement of Shri. Govind Kumar Agarwal, the Managing Director was recorded on 04.03.2011 during which he inter alia stated that they have indulged in clandestine clearance of sponge iron and clandestine manufacture and clearance of MS Ingots occasionally due to market conditions. During the course of investigation, statement of Appellant No. (2) was recorded wherein he admitted the clearance of 290 MT of sponge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further submitted that the demand has been confirmed solely on the basis of the statement of the Managing Director who was made to admit the duty liability by using force. He further submitted that the Managing Director was not questioned with reference to any of the documentary evidences but a bald statement was recorded solely for the purpose of demanding of duty. Except for his statement there is not even an iota of evidence to prove the allegations of clandestine removal on the part of Appellant No. (1). He further submitted that even in the statement of Shri. Govind Kumar Agarwal, Managing Director of M/s. Shivam Smelters, the Appellant No. (1) has not been named from whom he has procured the sponge iron. He further submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (26) S.T.R. 262 (All.) k. Balashri Metals Pvt. Ltd. Vs. UOI 2017 (345) E.L.T 187 (Jhar.) l. Om Shanti Steel Casting Pvt. Ltd. Vs. UOI 2017 (347) E.L.T 441 (Jhar.) m. CCE, Chandigarh Vs. Nachiketa Paper Ltd. 2008 (225) E.L.T. 194 (P H) n. Flevel International Vs. CCE 2016 (332) E.L.T. 416 (Del.) 3.1. He also submitted that burden of proving the allegation of manufacture and clandestine clearance is on the Department and in the present case, the Department has failed to prove the same with proper and cogent evidences. For this submission, he relied upon the following decisions: a. Pacific Pharmaceuticals Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this submission, he has relied upon the following case-laws: a. CCE, Mumbai Vs. Kalvert Foods India Pvt. Ltd. 2011 (270) E.L.T. 643 (S.C) b. Sri Rama Machinery Corporation Ltd. Vs. CCE, Chennai-l 2017 (348) E.L.T. 540 (Tri.-Chennai) c. CC, Mangalore Vs. Jindal Vijayanagar Steel Ltd. 2017 (346) E.L.T. 378 (Kar.) d. JSW Steel Limited V. Commissioner 2017 (346) E.L.T. A138 (S.C) e. CCE C, Aurangabad Vs. Padmashri V.V. Patil S.S.K. Ltd. 2007 (215) E.L.T. 23 (Bom.) f. CCE Cus., Calicut Vs. General Manager, Telecom, BSNL 2009 (14) S.T.R. 450 (Ker.) 5. After considering the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. 13. Thus, to prove the allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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