TMI Blog2021 (4) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, Smt. Sunita Devi, was recovered in June, 2005. There appears no acknowledgement on her part about she being involved in the alleged collusion with SSSRM for the alleged clandestine removal except for the raw material to have been delivered to SSSRM - the entire burden was that of the Department to prove that the appellant have been clearing the raw material from their premises and were getting the same delivered to SSSRM without discharging their liability. The demand against the appellant has been confirmed solely on the ground that the Director of the appellant could not indicate any reason as to why the entries in the private record of SSSRM mention appellant s name, the same finding are definitely presumptive finding. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent ORDER The appellant herein is manufacturer of M. S. Ingots. Acting upon an intelligence that M/s Shree Sharma Steel Rolling Mills Pvt. Limited (SSSRM herein) Jaipur were indulging in suppression of production and clandestine removal of bars/ rods, that the premises of SSSRM was searched on 10.09.2005. Certain loose documents were recovered from the premises under resumption memo prepared on the spot on 10.09.2005 itself. Some other documents in the form of hand written ledger books pertaining to the period from April, 2005 were also recovered on the same date from the same premises. After examination of various records with respect to the documents recovered, show cause notice dated 12.06.2009 was served upon the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant nor the Department has produced any evidence. It is submitted that excise returns were being filed regularly by the appellant. All facts and figures were regularly being noticed by the Department. Hence, Department has wrongly invoked the extended period of limitation. The demand is liable to be set aside on this score as well. Learned Counsel accordingly, prayed for allowing the appeal. 4. Learned Authorised Representative Ms. Tamanna Alam on the other hand rebutted the submissions. It is mentioned that the Commissioner has thoroughly examined the evidence and confirmed the demand only on 201.165 MT of M.S. Ingots against the proposed demand on alleged clandestine removal of 9551.278 MT of MS ingots. She accordingly prayed for dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumptive finding. The order is not discussing any documents of the appellant proving the alleged clandestine removal on part of the appellant. The Adjudicating Authority has merely relied upon the statement of the Director. Resultantly the confirmation of demand is merely based on third party evidence. The law in this respect has clearly been settled by Hon ble Allahabad High Court in the case of Continental Cement Company vs. Union of India -2014 (309) ELT 411 (All.) wherein it has been held- that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. Any demand and the proportionate penalty on the Director of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler quantity of 201.165 MT of ingots though much larger quantity of 9551.278 MT of ingots was otherwise alleged to have clandestinely removed, has wrongly been confirmed. 7. With respect to the issue of limitation, apparently and admittedly appellant was regularly filing the returns. There is nothing produced on record by the Department to show any positive act on part of the appellant which may amount to suppression of relevant facts. Resultantly, the demand for a period of more than one year could not have been made. Department could not have invoked the extended period of limitation. Show cause notice is therefore held to be barred by time. The adjudication based thereupon cannot sustain. As a result of above discussion, the order und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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