TMI Blog2021 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... epting that the differences are on account of trading of goods which does not form part of clearance as per ER 1 return of the Appellant - The Appellant has produced their tax auditors certificate certifying the reconciliation which was also produced by the Appellant before adjudicating authority and we find that the said reconciliation clearly establishes the reconciliation between the figures of clearance as per 3CD and ER 1. Alternatively, it is also on record that the adjudicating authority has not given any cognizance to the submission of the Appellants as regards allegation of clandestine removal and the burden to prove the same - no investigation has been conducted by the department to prove the allegation of clandestine removal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant by the Central Excise Audit wing of the department, it was noticed that on scrutiny of the 3CD return of the final statement filed by the appellant with the Income Tax department and ER 1 return filed by the appellant for the year 2012-13 to 2015-16, there were excess clearance in respect of Aerated Water and Fruit based beverage over and above the ER 1 return and hence it was stated that the appellant has clandestinely removed such goods without payment of excise duty. Based on the above allegation, on June 2, 2017, the Ld. Commissioner issued a Show Cause Notice to the Appellant proposing to demand excise duty on the quantities of the finished goods shown as excess clearance in 3CD form on comparison with the same shown in ER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red goods whereas the 3CD form is based on entire turnover which includes traded goods also. (iii) That the Appellant has already provided detailed reconciliation for the same before the Adjudicating authority which has not been considered at all by the ld. Adjudicating authority (iv) That there is no difference in clearance of manufactured products as per ER 1 and form 3CD of Income tax. (v) the Adjudicating authority has not discussed any reasons for confirmation of demand on account of clandestine removal and the same has not been brought on record; He relied on the following judgments which have held that to prove the allegation of clandestine removal of goods, the evidence must be brought by the department: a. COMMISSION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the Adjudicating Authority has confirmed the demand of excise duty only on the ground that there are differences in quantity of clearance of goods as per ER 1 and form 3CD as filed by the Appellant, even after accepting that the differences are on account of trading of goods which does not form part of clearance as per ER 1 return of the Appellant in para 5.6 of the Order-in-Original dated November 30, 2017. It is the case of the Revenue that the said Appellant has manufactured and cleared the goods to the extent of excess reported in form 3CD of Tax Audit Report as filed with Income tax authorities. However it is seen that such allegation is only on the basis of the figure work of the department without production of any other evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown in the balance sheet, then what has been shown in RT-12 returns. The Tribunal as also the Commissioner has noted the common feature that manufacturers show inflated figures of its production in the balance-sheet for taking higher loan facilities from the Bank and accepted the plea of the manufacturer. 9. Accordingly, we are of the opinion that the balance sheet prepared by the Chartered Accountant can be ignored on relevant and good grounds. The grounds assigned by the Commissioner as also the Tribunal are good and valid grounds. We are of the opinion that the balance sheet prepared by the qualified Chartered Accountant is not conclusive proof in regard to the production. 10. Accordingly, we answer the reference against the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained. It is a settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing some evidence. The Tribunal has taken consistent view that in absence of corroborative evidence, the charge of clandestine clearance cannot be levelled against the assessee. Some of the decisions are as below : Ghodavat Pan Masala Products Ltd. v. CCE - 2004 (175) E.L.T. 182 (Tri.-Mumbai) CCE v. Supreme Fire Works Factory - 2004 (163) E.L.T. 510 (Tri.-Chennai) CCE v. Suvidha Limited - 2009 (236) E.L.T. 675 (Tri.-Del.) 9 .. In fact, in the instant case, no shortages of goods were ever found which fact is on record and not in dispute. In any case, since we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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