TMI Blog2023 (6) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstantial evidence in regard to allegation of huge evasion of Central Excise duty by resorting to clandestine manufacture and sale of 35948.0799 MT of MS Bars Rods by the Respondent. It is a settled proposition that demand cannot be raised on assumptions and presumptions in cases of clandestine removal. There are no infirmities in the impunged order and hence the same is sustained - appeal dismissed. - Excise Appeal No. 76522 of 2014 - FINAL ORDER NO. 75868/2023 - Dated:- 28-6-2023 - HON BLE SHRI P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri K. Chowdhury , Authorized Representative for the Revenue Shri Ankit Kanodia , Advocate for the Respondent ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounting for the same and accordingly a Show cause cum demand notice dated 08.04.2013 (hereinafter referred to as SCN ) was issued to the Respondent alleging evasion of excise duty of an amount of Rs. 13,35,39,859/- along with interest and equivalent penalty under section 11AC of the Central Excise Act, 1944 as per calculation annexed to the said SCN along with proposal to impose personal penalty under Rule 26 of the Central Excise Rules, 2002 on Mr. Ramesh Chandra Gupta, Managing Director, Shri Prasant Joshi, Senior Manager and Shri Shashi Bhushan Singh, Accountant of the Respondent. 2. The said SCN was adjudicated by the Ld. Adjudicating authority and after perusal of the entire records, the Order-in-Original No. 22/M.P./Ayukta/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the investigating agency i.e. DGECI, the investigating agency and thus the officials of GEQD had to be examined. He further stated that the entire demand is based on investigation of KIL which itself is in dispute and thus no demand can be confirmed against the Respondent and the adjudicating authority has rightly dropped the entire demand. He relied on the judgment of the Tribunal as affirmed by the Hon ble High Court in the case of ASHUTOSH METAL INDUSTRIES Versus COMMISSIONER OF C. EX. S.T., DELHI 2018 (15) G.S.T.L. 384 (Tri. - Del.) and 2019 (366) E.L.T. 1019 (Del.) in his support. 5. Further, the Respondents also contended that is a settled proposition under the excise laws that clandestine removal cannot be provided based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, 1944 was not fulfilled as also the fraudulent character of the Respondent even when there was a shortage of 20.798 MT of MS Ingot found during physical verification on 15.02.2013. 8. We find that the report of GEQD itself has been disputed on allegations of manipulation as per the order of the Tribunal dated 02/04/2018 (supra). The Tribunal had remarked as below: The veracity of retrieved data as contained in profit and loss accounts cannot be relied upon as the Laptop/Computer/CPU has been accessed after sealing of the same. Further, the validity of retrieved data is doubtful, as the file based upon which demand has been raised was created on 12.11.2008 at 20:45:13 hrs and entries were modified on 13.11.2008 at 1: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icee no.- 1 and their officials had no lawful and/or administrative control over the use of the computers, pen drives and laptops etc. recovered from the premises at J- 1200 and other premises of KIL during search made on 12.11.2008 by the officers of DGCEI, the conditions provided under Section 36B(2)(a) of the Act are not fulfilled. 64 ..Earlier on this issue Show Cause Notices were issued to various assessees of this Commissionerate namely M/s KamperConcast Limited, M/s. JagdambaIspat (P) Limited and M/s.Venky Steels (P) Limited which were decided in their favour by the then Commissioner of Central Excise Service Tax, Patna vide his order-in-original nos. 03-06/MP/Commr./2011 dt.08.03.2011, 07-10/MP/Commr./2011 dt.09.03.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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