TMI Blog2021 (12) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... justified. Thus, demand of excise duty only on assumptions and presumptions in quantity of clearance of finished goods figures of Tax Audit form 3CD and ER 1 cannot be sustained both on merits and on limitation and is accordingly set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No.75018 of 2021 - FINAL ORDER NO.75861/2021 - Dated:- 21-12-2021 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI RAJU, TECHNICAL MEMBER Shri Ankit Kanodia, Advocate Shri Anand Agarwal, Authorised Representative for the Appellant Shri J.Chattopadhyay, Authorized Representative for the Respondent ORDER The present appeal has been filed by the Appellant being aggrieved with the Order-in-Original dated 09th October 2020 passed by the learned Commissioner, whereby the demand of excise duty of ₹ 2,53,48,269/- has been confirmed for the period 2013-14, along with interest and penalty as proposed in the Show Cause Notice dated 09th May, 2018. 2. Briefly stated, the facts of the case are that the Appellant is engaged in the manufacture of Calcined Petroleum Coke (CPC) classifiable under Chapter 27 of the First Schedule to the Central Excise Tariff Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates to explain the reasons of difference before the Adjudicating Authority which has not been considered at all by him. (iii) That there is no difference in value of sales of manufactured products as per ER 1 and form 3CD of Income tax and that the difference is only on account of quantitative disclosure (iv) 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 further relied on the following judgments which have held that to prove the allegation of clandestine removal of goods, the evidence must be brought on record by the department: a. Commissioner Of C. Ex., Patna Versus Universal Polythelene Industries [2011 (270) E.L.T. 168 (Pat.)], b. Commissioner V. Universal Polythelene Industries - 2016 (342) E.L.T. A226 (S.C.). c. Golden Steel Corporation Ltd. Versus Commissioner Of C. Ex., Kolkata-Ii 2017 (347) E.L.T. 570 (Tri. - Kolkata) d. Sri Durga Cables Pvt. Ltd. Versus Commr. Of C. Ex. Cus., Bhubaneswar-I 2020 (374) E.L.T. 459 (Tri. - Kolkata) e. Shree Nirmalanand Steel Casting (P) Ltd. Versus C.C.E., Raipur (Cg)[ 2017 (357) E.L.T. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13993.25 694.07 6337.35 13948.2 5 Stock transfer Total 17648.0 0 1542.31 19190. 71 14187.27 694.07 6337.35 14187.2 7 Sales 3326.35 54 6337.35 9717.70 Stock transfer 2857.93 640.07 3498.00 Consumption 16586.2 9 1542.31 18128. 60 7031.42 Sub-total 16586.2 9 1542.31 18128. 60 13215.70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of the Department without production of any other evidences for demand of excise duty for clandestine removal of manufactured goods. 8. The Appellant has produced before us their Tax Auditor s certificates certifying the reconciliation which was also produced by the Appellant before the learned Adjudicating Authority and we find that the said certificates clearly puts up the reconciliation between the figures of clearance as per 3CD and ER 1. Further, we find that the Hon ble Patna High Court in the case of Commissioner Of C. Ex., Patna Versus Universal Polythelene Industries [2011 (270) E.L.T. 168 (Pat.)], had clearly held that in case of difference in figures between balance sheet and returns, it is not a rule that balance sheet figures are to be taken as correct- 8.We are of the opinion that in case of discrepancy between the balance sheet prepared by the qualified Chartered Accountant and RT-12, as a proposition of law it cannot be said that it is the balance sheet which will prevail. It will depend upon the facts and circumstances of each case. In the facts of a given case, RT-12 may prevail. Similarly in case of conflict, in a particular case the balance sheet may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the total production by the Appellant amounts to 13948.25 MT. In view thereof, it is evident that based on the production norm of 1.3 : 1, the total amount of CPC manufactured during the period in dispute could only have been 13945 MT approximately. In the present case, the total production amounts to 13948.25 MT, which is nearly same as the quantity of finished goods that could have been manufactured with the given quantity of raw materials used. Therefore, the allegation of clandestine production and clearance thereof cannot be sustained. 11. 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. In this regard we refer to the judgment of the Tribunal in the case of Sri Durga Cables Pvt. Ltd. Versus Commr. Of C. Ex. Cus., Bhubaneswar-I 2020 (374) E.L.T. 459 (Tri. - Kolkata) wherein this Tribunal held as- 7. We find that the issue to be decided in this case is whether the appellant has clandestinely removed the goods on which the duty demand has been made. We find that in the entire proceedings, no evidence, much ..... X X X X Extracts X X X X X X X X Extracts X X X X
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