TMI Blog2019 (8) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... e inconclusive investigations conducted by the Department or the impugned findings of the learned Commissioner suggesting that the charge of clandestine removal had been established. To take one instance the appellant had consistently maintained that it had possessed sufficient kadahis, chulahs, trays etc. required for mishri production and that these were minor value equipments which did not require much capital investment. Yet, no attempt was made by the Department to disprove such claims. A bald statement that kadahis, chulahs, trays etc. were not equipments for biscuits manufacture and that the appellant had failed to show records for purchase of the same cannot be countenanced - the finding in the impugned Order that the Appellant did not purchase Parel-G biscuits from M/s Maruti Foods has not been substantiated. Appeal allowed - decided in favor of appellant. - Excise Appeal No.327 of 2009 - FINAL ORDER NO. 76362/2019 - Dated:- 6-8-2019 - HON BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) AND HON BLE SHRI BIJAY KUMAR, MEMBER(TECHNICAL) Shri Saurav Bagaria And Shri Indranil Banerjee (Advocates) for the Appellant Shri S.Mukhopadhyay, Authorized Representative for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability of the noticee is ₹ 71,24,068/- (Rupees seventy one lakhs twenty four thousand and sixty eight) inasmuch as the noticee purchased 4,14,000 bags of sugar during March April, 2001 of which only 87,500 was found unconsumed. Thus, the noticee consumed (4,14,000 87,500=) 3,26,500 kgs of sugar towards manufacture of biscuits during the period April-September, 2001, and which, as per the formula stated by the noticee (that 10% of sugar is consumed in biscuits) has been converted in to biscuits of quantity 32,65,000 kgs. On the day of search, 57621.95 kgs of biscuits were recovered. Thus, the noticee manufactured and clandestinely cleared (32,65,000.00 57,621.95 =) 32,07,378.05 kgs of biscuits. If the average selling price of biscuits as stated by the noticee, is taken at ₹ 17/kg, the total value of such clearance comes to ₹ 5,45,25,427/-, and after availing of duty free clearances of ₹ 1,00,00,000/-, the dutiable clearance value comes to ₹ 4,45,25,427/- on which the duty liability @ 16% comes to ₹ 71,24,068/- only. Confiscation of seized goods worth ₹ 9,79,573/- value in total was also proposed by the said notice. 4. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 13.10.2008. Pursuant to the aforesaid the impugned de-novo Order was purportedly passed. 6. The Ld. Advocates appearing on behalf of the Appellant submitted that it was not under dispute that the Appellant had purchased 4140 bags of old stock of sugar pertaining to the period from 1994-95 to 1995-96 at an auction conducted by the Bihar State Sugar Corporation. The Ld. Advocate invited the attention of the Bench to the sample bills for purchase of the said higher grade of sugar actually meant for biscuits manufacture. 6.1 It was further submitted that out of the aforesaid 4140 bags purchased, the Appellant had utilized all barring 25 bags which got wasted/spoilt in the manufacture and sale of mishri. It was also submitted that the Department had drawn samples from the said old stock of sugar but no report had been provided. The Department s contention that no evidence had been submitted proving that the entire 4140 bags of sugar had become moist, discoloured and the same was unsuited to biscuit manufacture is, thus, contradicted by its conduct. Further, wastage of the aforesaid 25 bags of sugar was not unreasonable and duly recorded in the Mishri Division s Form-3CD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 7. On the other hand, the learned DR reiterated the findings in the impugned order. It was also submitted that the adjudicating authority had examined the matter afresh and passed a detailed speaking order, which is required to be upheld. 8. Heard both sides and perused the appeal records. 9. We find that it is a settled law that the charge of clandestine removal is a serious one and has to be proved with the help of tangible evidence. In the instant case, we find that there is a want of evidence with respect to the adverse findings against the Appellant that it utilized unaccounted stock of old sugar towards clandestine manufacture of biscuits. Such findings are neither supported by material proving unaccounted procurement of maida, ammonia, salt, flavours etc. nor flowback of funds in the Appellant s accounts. The purported buyers of such clandestinely cleared biscuits remained unidentified. Further, we find that the Impugned Order has not dealt with the infrastructural incapability of the Appellant to manufacture such huge quantities of biscuits. 9.1 We observe that in cases of clandestine removal the burden of proof is on the Revenue to establish that goods have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard. 9.6 We also note that the Appellant had maintained its Books separately with respect to the Mishri Division, which has not been discussed in the impugned order. No cognizance seems to have been taken of the Form-3CD (Mishri Division) for AY-2002-03 wherein wastage/ loss of 25 bags of sugar were mentioned. 9.7 Sri Bagaria rightly submitted that the learned Commissioner s findings that the sugar for biscuit manufacture had not been procured separately and that old and moist, de-coloured sugar had been used for biscuits production were contrary to the evidence on record. It is an undisputed fact that on the day of search and seizure, 70 bags of dry and white sugar had been found in the appellant s factory premises. This had been further explained by the appellant s proprietor Sri B. K. Khetan during question by the Central Excise officers. Supporting bills in respect of such sugar purchase had also been submitted on sample basis. In the Form 3CD for AY 2002-03 sugar purchase of 16.50 MT meant for biscuit production had been declared. On the same lines the Manufacturing Trading and Profit and Loss Account for the year ended 31.03.2002 showed raw materials purchase for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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