TMI Blog2023 (7) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No.08/2003-CE dated 01.03.2003. The impugned demand is not sustainable. Accordingly, the same is set aside and the appeal is allowed. - Excise Appeal No. 75229 of 2022 - FINAL ORDER NO. 76204 / 2023 - Dated:- 28-7-2023 - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Ankit Kanodia , Advocate for the Appellant Shri A. Roy , Authorised Representative for the Respondent ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order demanding duty of Rs.2,81,92,244/- for the period 19.06.2016 to 31.03.2017 on account of clandestine removal of goods. 2. The facts of the case are that the appellant is engaged in manufacturing and trading of plywood, flush doors and black board. An investigation carried out by DGCI, Jamshedpur on 01.06.2018 wherein search was conducted at the factory and office premises, residence of the Director, residence of Accountant and residence of the sales man of the appellant and some documents were seized from the residential premises of the Accountant of the Appellant. The Accountant in his statement dated 01.06.2018 24.08.2018, explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax, Durgapur : 2020 (371) ELT 751 (Tri.-Kolkata). 3.5 He also relied on the decision of this Tribunal in the case of M/s MSP Sponge Iron Limited Vs. Commissioner of CGST Excise Customs,Rourkela : 2020 TIOL 523 CESTAT KOL. 3.6 He therefore submitted that no investigation was conducted by the Department for purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds. Therefore, the show-cause notice has been issued on whims and fancies of the Department. 3.7 It is his submission that the appellant does not have the capacity to manufacture of such huge quantity of finished goods. There is nothing on record to show that the appellant was in a position to manufacture of such excess quantity of finished goods than what stands reflected in their statutory records. In this regard, the ld.Counsel for the Appellant relied on the decision of this Tribunal in the case of Commissioner of Service Tax, Delhi I VS. Jindal Nickel and Alloys Limited : 2017 TIOL 3784 CESTAT DEL. 3.8 The ld.Counsel for the appellant further submitted that the appellant is a small scale unit and thus is enjoyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of raw material inside the factory premises, and non-accounted thereof in the statutory records; (ii) Utilization of such raw material for clandestine manufacture of finished goods; (iii) Manufacture of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate recorts, transporters' documents, such as L.R.s, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal. Whereas, in the instant case, no such clinching or corroborative evidences to the above effect have been brought on record. 15. In the instant case, the entire case of the Revenue is based on the Kaccha Chithas seized from the residence of the Director. The manner in which the said Kaccha C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor described the method of stock taking to counter the case. We are unable to accept the contention of the Revenue without any basis, such as, the details of the weighment slip, counting slip etc., as the case may be. It cannot be on the basis of eye estimation or otherwise. 18. The learned Commissioner has asserted in the impugned order that the demand based on the Kacha Chithas and the statement of Director is sustainable and that no further corroboration was required in view of the clinching nature of the oral and documentary evidence establishing clandestine production and removal of finished goods at para 17.2 of the Order-in-Original is clearly contrary to the judicial precedents cited supra. 19. We further find that the contention of the learned Commissioner in the impugned Order-in-Original that it is neither feasible nor desirable to cause enquiry at all possible points concerning the clearances at Para 17.5 of the impugned order itself clarifies that the demand has been raised solely on the basis of assumptions and presumption and no corroborative evidence was brought out by the Revenue except the so called Kacha Chithas and statement of Director. 20. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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