TMI Blog2020 (7) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... ged to be an afterthought. The documents as relied upon by adjudicating authority below, while confirming the demand are delivery challan, estimated invoice, outgoing sheet etc. but these documents admittedly and apparently have not been co-related with the documents submitted by the appellant - perusal of documents makes it clear that the Department has ignored the supportive documents which are sufficient enough to falsify the opinion of the Revenue formed at the time of the investigation. The another ground for confirming the demand is the shortage noticed after physical verification of the goods, admittedly the goods were verified on the basis of eye estimation - HELD THAT:- Tribunal Delhi in the case of COMMISSIONER OF CENTRAL EXCISE LUCKNOW VERSUS M/S. SIGMA CASTINGS LTD. [ 2012 (5) TMI 325 - CESTAT, NEW DELHI] has held that where the shortages have been made purely on eye estimation basis without any actual weighment of the goods the demand alleging clandestine removal cannot be upheld. The removal of inputs was also not taken into consideration while alleging the shortage of stock. The eye estimation of stock without any other corroborative evidence of removal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal allowed - decided in favor of appellant. - Excise Appeal No51725 of 2018 [SM] - FINAL ORDER No. 50714/2020 - Dated:- 13-7-2020 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri K.K. Menon, Advocate for the Appellant Shri P. Gupta, Authorised Representative for the Respondent ORDER The order in appeal No.479-17-18 dated 16.02.2018 has been assailed in the impugned appeal. The appellant was issued a show cause notice No.13/P/20969 dated 23.12.2015 proposing the recovery of excise duty amounting to ₹ 7,61,199/- alongwith the demand of ₹ 28,48,796/-. Interest on these amounts was also proposed with the imposition of penalty upon the Director of the appellant under Rule 25 of Excise Rules, 2002 read with Rule 15 of Cenvat Credit Rules. The said show cause notice was issued after a search was conducted in the premises of the appellant on 31.10.2012/ 01.11.2012 by the Central Excise Department and it was observed after conducting physical verification of the stock of finished goods and raw-material available in the appellant s premises that the appellants are engaged in procuring of unaccounted raw-materials for illicit manufacture of finished goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso been placed on the decision of Tribunal Delhi in the case of CCE vs. ABS Metals Pvt. Ltd. Reported as 2016 (341) ELT 425 (Tri.), Delhi. There is otherwise no evidence produced by the Revenue except for the presumption on their part and the payment of the duty demand by the appellant. The allegations of clandestine removal stand absolutely unproved. The onus was purely upon the Revenue, which they have failed. The shortage otherwise was merely on eye estimation basis. Same also is not sustainable. Decision in the case of Shri Nirmaland Steel Casting Pvt. Ltd. Vs. CCE, Raipur 2013 (288) ELT 103 (Tri. Del.) has been impressed upon. The appellant had also established that it engaged Sona Wires as job worker for further processing/ refining of disputed goods. The shortage of physical quantity of the goods i.e. HB wire and wire rods at the factory of appellants was conveyed to be physically available at the said Sona Wires at the time of investigation, but the submission has totally been ignored by the adjudicating authority despite the relevant challans for sending the goods for job work and receiving the same after job work were submitted with the Department. With these submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so proved with the cogent evidence. It is settled law that onus is on Revenue to prove otherwise with cogent evidences that the goods have been removed by the manufacturer without the duty paying invoices as was held in the case of Bharat Seats Ltd. Vs. CCE 2009 (242) ELT 308 (Tri.-Delhi). 8. The documents as relied upon by adjudicating authority below, while confirming the demand are delivery challan, estimated invoice, outgoing sheet etc. but these documents admittedly and apparently have not been co-related with the documents submitted by the appellant. Perusal of said documents with the delivery challans recovered by the Department, as found annexed on record as well, it is abundantly clear that the delivery challans are in the name of Sona wires Pvt. Ltd. and document of appellant are proving that Sona Wire were their job worker and the shortage as noticed by the Department at the time of investigation was purely on account of the goods being given to said job worker. This perual makes it clear that the Department has ignored the supportive documents which are sufficient enough to falsify the opinion of the Revenue formed at the time of the investigation. 9. The anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that charge of clandestine removal is to be established on the basis of preponderance of probabilities, it cannot be merely on the basis of assumptions and presumptions. Clandestine removal has to be established beyond doubt by adducing strong, sufficient and positive evidence and the burden of proving the same is on the Department. 11. I further observe that there is no evidence of procurement of raw-material and consumption thereof. No single payment detail of clandestine sale has been discussed. Nor there is any evidence of any excessive power consumption which is otherwise required for the alleged large scale production. Nor there is any record of recruitment of workers or staff required for alleged massive production with no payment of record of salary and wages to such workers. No document in the form of receipts of any cash or kind on account of clandestine clearance and sale of goods has been seized from the parties. No evidences of removal of excisable goods or procurement of raw-materials and its consumption are on record. I rely on the decision of Hon ble Apex Court in the case of Continental Foundation Joint Venture vs.CCE, Chandigarh-I - 2007 (216) ELT 177, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to invoke the proviso to Section 11A(1) a mere misstatement could not be enough. The requirement in law is that such misstatement or suppression of facts must be willful. We do not propose to burden this judgment with various authoritative pronouncements except to refer the judgment of this Court in Anand Nishikawa Co. Ltd. v. CCE [2005 (188) E.L.T. 149 (S.C)] wherein this Court held : We find that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. (emphasis supplied) 14. In another decision of Pahwa Chemicals Pvt. Ltd. vs. CCE, Delhi reported in 2005 (189) ELT 257 Hon ble Supreme Court has held that mere failure to declare does not amount to mis-declaration or willful suppression. There has to be some positive act on part of the assessee to establish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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