TMI Blog2020 (6) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... and receipt of sale proceeds etc, could have probably substantiated the allegation even if not proved with arithmetical accuracy. No such evidence has been produced by the revenue - In such circumstances, it cannot be held that the clandestine removal is proved, if not beyond doubt. The allegation/observation of suppression of production and clandestine removal is a serious allegation and it has to be established by the investigation by affirmative and cogent evidence, which is absent in the Order in-original except relying upon such documents and entries there in, which has been disputed by the Appellant. Since the department has not adduced evidence to establish suppression of production, evidence of excess receipt of raw materials a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 (including H.Ed. Cess and SHE cess ) on the excisable goods allegedly manufactured and clandestinely removed by them during the period from March, 2007 to March, 2008 along with interest and proposing imposition of penalty on the assesse company as well as upon the Director. The Adjudicating Authorityconfirmed the demand of ₹ 73, 84,218.00 along with interest and imposed penalty of equivalent amount under Section 11AC of the Central Excise Act, 1944. A furtherpenalty of ₹ 73,84,218/- was also imposed upon the Director Shri Sanjay Kumar Rajgarhia under Rule 26 of the Central Excise Rules, 2002. 2. The assessee preferred appeal against the Order-in-Original before the Commissioner (Appeals). However, the Lower Appellate Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration whether raw materials has been received or finished goods have been dispatched. (viii) Statement dated 12.03.2008 of Shri Upendra Narayan Jha , Security Supervisor of BAPL. (ix) Statement dated 20.10.2008 of Shri Ashish Kumar Sinha , weigh bridge staff of BAPL. (x) Statement dated 12.03.2008 of Shri Pradeep Kumar Trivedi ,staff of BAPL. (xi) Statement dated 12.03.2008, 18.12.2008 19.12.2008 of Shri Sanjay Kumar Rajgarhia ,Director of BAPL. (xii) Details of electricity consumption submitted by DVC . 3. Being aggrieved with the Order-in-Appeal, the present appeal has been filed by the Appellant. 4. Assailing the impugned Order-in-Appeal, the learned Advocate appearing for the Appellant submitted that the order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking as on date was taken on average basis without taking into consideration the runners and risers, defective ingots and ingots scattered over sand beds for cooling. Actual weight was not taken as there is nothing in the search list to show the methodology adopted for weighment. So far as recording of statement is concerned, there was good number of officers participating in the search. The Director and staff members were put under constant pressure and coerced to write down as per their dictation. Subsequent statements were recorded in the DGCEI office at odd hours after constant humiliation and mental pressure. It is not a fact that the Director, at any point of time, admitted to have removed any excisable goods without payment of centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the case of Sober plastic Pvt. Ltd. v. CCE [2002(139) E.L.T 562 (T)], wherein it has been held that demand based on weighment slips, slips recovered from Dharamkanta etc. relied upon for raising demand not verified with reference to transactions is not sustainable. This settled law is applicable to the facts of the Appellant since demand has been confirmed without verifying with reference to transactions. Reliance has also been placed on the decision of the Tribunal in the case of CCE v. supreme Fire Works factory [2004 (163) E.L.T 510(Tri.) which dealt with the allegation of clandestine manufacture and removal and observed that mere suspicion cannot take the place of proof. Proof and evidence of purchase of raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s produced as evidence have been recorded under coercion and duress, final figure of finished goods have been truly recorded in the computer and duty have been duly paid on the finished goods on removal . 12. We find that the entries in the loose sheet might have created doubt in the minds of the Revenue, but it could not have been taken as a piece of evidence by itself. It would, at best, only create suspicion to further investigate the matter. Other evidence regarding procurement of raw material, manufacture of goods by engaging labour, usage of electricity, dispatch and transport of final goods, destination of final goods and receipt of sale proceeds etc, could have probably substantiated the allegation even if not proved with arithme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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