TMI Blog2022 (8) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. The onus was on the department to procure such documentary evidence from the appellants premises which would have corroborated the said Mangla register but apparently and admittedly nothing was recovered from the appellants premises. In the present case, there are no other evidence or document in the form of some verification of the raw material of appellant or the material received in the appellants premises from M/s. GI SW. No transportation material in the appellant premises was recovered. None of the documents as mentioned, got recovered from appellant s premises. It stands clear that Mangla register relied upon by the Adjudicating Authority below is nothing but a third party evidence. It has been settled in catena of decisions that third party evidence cannot be used for duty demand and for imposition of penalty. The duty demand has wrongly been confirmed against M/s. H R Steels Pvt. Ltd. Once there is no evidence of any clandestine removal or duty evasion, as alleged, by M/s. H R Steels Pvt Ltd., no question arises for imposition of penalty on its Director or the Manager. Resultantly, the order imposing penalty on Shri Suresh Chand Sharma, Manager and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ram Transport Co. on 21.2.2017 in presence of its proprietor Shri Rohtas Bidhuri. The documents as that of Bill Books /registers/ billities etc. pertaining to the period from July 2012 to September 2013 had been resumed by DGCEI. The said proprietor vide his statement dated 26.09.2013 had acknowledged that his Mangla register has the mention of all the documents and details of the goods which have been transported from M/s. GI SW units. After the scrutiny of various statements recorded of Shri Vikram Bisht of GI SW, Shri Rohtas Bidhuri and Shri Suparas Banthia, the department formed an opinion that M/s. H R Steel Pvt Ltd. has purchased 220.530 MT of MS Ingot from M/s. GI SW during the period from July 2012 and August 2012 and also purchased of 517.490 MT of MS ingots from M/s. GI SW during the period from 01.04.2013 to 24.09.2013 as contrary to their deposition for purchase of 160.050 MT and 140.760 MT respectively. That the evasion of Central Excise duty was alleged against the appellant. The Directors and its Manager accordingly were served with the show cause notice No. 1769 dated 30.06.2017, vide which the Central Excise duty amounting to Rs.19,57,296/- was proposed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 51591/2019 Ex(SM) dt. 30.10.2019 3. Shri Shyam Ingot Casting Pvt Ltd. vs CCE Final Order No. 50678/2022 Exc (SM) dt 30.08.2022 The order under challenge is therefore prayed to be set aside and appeal is prayed to be allowed. 4. While submitting about Shri Kunal Keshav Manchanda and Dhruv Manachanda, partners of M/s. GI SW, learned Counsel has mentioned that there is no iota of evidence against any of these partners. Even Shri Vikam Singh Bisht, whose statement has been relied upon by the department has not deposed about both these appellants to have ever been concerned with the impugned goods in any of the ways as are mentioned in Rule 26 of the Central Excise Rules, 2002. The order of imposition of penalty upon both the appellants is prayed to be set aside. Learned Counsel relies on the following decision: Milind Pires vs CCE, Thane [2017-TIOL-1618-CESTAT-MUM]; 5. While rebutting the submissions learned Departmental Representative has mentioned that Show cause notice was issued based upon the documents recovered from the premises of M/s. GI SW and also from the premises of their transporter. The proprietor of said transporter has admitted maintaining the recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procure such documentary evidence from the appellants premises which would have corroborated the said Mangla register but apparently and admittedly nothing was recovered from the appellants premises. 7. The kind of evidence as is required to prove the allegations of clandestine removal has been elaborated in the case of Continental Cement Company vs Union of India reported in [2014 (309) ELT 411 (All)] Hon ble Allahabad High Court has held that - 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. GI SW, apparently M/s. GI SW is not a co-noticcee in the present case despite that the search was conducted in their premises. The penalty imposed upon both of its Directors have been confirmed under Rule 26 of CE Rules, 2002. The said Rules reads as follows: RULE 26. Penalty for certain offences. - (1) Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or [two thousand rupees], whichever is greater. (2) Any person, who issues - (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or (ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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