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2019 (12) TMI 106

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..... n the noticed shortage department has alleged the clandestine removal and that it has already been observed by the adjudicating authority below that Department is not able to prove the allegations. Law has been settled by catena of judgments that clandestine removal is a serious charge. The burden to prove the same is required to be discharged by the Department by production of sufficient and tangible corroborative evidence - As already held by the adjudicating authority that there is no such evidence. Department is not in appeal against the said observations as well. Once this is the fact of the present case, mere shortage in the stock as noticed, that too, on the basis of eye estimation only, the same cannot be held to be convincing corro .....

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..... l Excise duty of ₹ 1,24,71,399/- in respect of 7081.293 MT of sponge iron alleging the same to have been cleared clandestinely during the period from 2005-06 to 2007-08. A demand of ₹ 4,16,234/- was also proposed as against the shortages of 227.540 MT of sponge iron as detected during the search on 10th August, 2007. The interest at the appropriate rate and the proportionate penalties were also proposed to be imposed upon the appellant. The said proposal was confirmed vide the Order-in-Original No.110/202 dated 30th November, 2012. An appeal was filed before this Tribunal vide final order No.52349-52409/2017 dated 09.03.2017. The matters were remanded back for de-novo adjudication, observing the order to be suffering from variou .....

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..... destine removal. While relying upon case law in the case of Commissioner of Central Excise, Kanpur vs. Frontline Metal Pvt. Ltd. reported in 2017 (357) E.L.T. 715 (Tri.-Del.), Continental Cement Company vs. Union of India reported in 2014 (309) E.L.T. 411 (All.), ld. Counsel has prayed for setting aside the confirmation even of the demand of ₹ 4,16,234/-, the interest and the penalties imposed. Appeals are prayed to be allowed. 4. While rebutting these arguments ld. Departmental Representative have impressed upon the order under challenge to be justified. It is submitted that the order is absolutely clear, observing that no rational explanation has been given by the appellants about the noticed shortage. The statement of one of the ap .....

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..... . (vi) To find out the excess power consumptions. 13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 6. While complying the directions of remand the adjudicating authority vide the order under challenge has observed that the allegation of clandestine removal are based on presumption and assumptions only and there has been no investigation to the above criterias. 7. Resultantly, the narrow scope of these appeals is about the demand of ₹ 4,16,234, as has been confirmed in respect of the shortage noticed in the stock of the appellants. No doubt, the statement of Mr. Kejriwal has recorded inability on his part to give th .....

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..... sis only and the quantity of scrap was determined on eye estimation, the alleged shortage of scrap and MS ingots cannot be treated as real shortage and the goods allegedly found short cannot be treated as having been cleared clandestinely without payment of duty. 8. The adjudicating authority below has taken the statement of Mr. Kejriwal to be an admission qua the noticed shortage. But the law has equally been settled in this respect that though an admission is extremely important piece of evidence, it cannot be said to be the conclusive proof as was held by Ahmadabad Bench of this Tribunal in the case of M/s.Kejwal Dyestuff Industries vs. CCE, Ahmadabad reported in 2007 (216) ELT 310. In another decision of this Tribunal, Delhi Bench in th .....

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