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TMI Blog2025 (3) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity in ER-4 under sales quantity since there is no place for showing the details of captive consumption there. 2. On 08/06/2017 a Show Cause Notice was issued on the ground that the appellant has cleared 945.900 MT of their finished goods without payment of Excise Duty. Taking the Assessable Value @ Rs. 34000 per MT, the demand of Rs. 39,75,470/- was made towards the clandestine clearance of 946 MT of Steel Ingots. The appellant filed their reply explaining the typographical error and the details of captive consumption and prayed that the proceedings may be dropped. After due process, the Adjudicating Authority confirmed the demand. Before the Commissioner (Appeals), at the time of filing the appeal against this impugned order, the appellants have submitted the Certificate issued by the Chartered Accountant showing the full reconciliation details. The Commissioner (Appeals) has remanded the matter to the Adjudicating Authority to consider all the documentary evidence and pass a proper order. In the Denovo adjudication, the Adjudicating Authority has not given proper consideration to the explanation given by the appellant. He also did not give proper weightage to the Certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any corroborative evidence, it is submitted that the confirmed demand cannot be legally sustained. 6. Apart from making submission on merits, she submits that the Show Cause Notice issued on 08/06/2017, for the alleged clandestine removal during the period April 2013 to March 2014, is time barred for the following reasons:- (1) Admittedly, it is on record that the appellant has filed their ER-1, ER-4 and ER-6 Returns. Only based on these records, the differential quantity has been arrived at. The quantification of demand is based on such differential quantity. (2) The appellants have recorded all the transactions in their Books of Account and have reflected the same in all the statutory Books of Account and the Returns filed by them. (3) The Spot Memo was issued on 09/5/2015 for which the appellant had filed their Reply on 19/06/2015. The quantity alleged as short in the Spot Memo dated 09/05/2015 and the present Show Cause Notice is the same. Therefore, this shows that no further investigation was taken up by the Department to quantify the demand. In such a case, the department was not required to wait for next more than two years to issue the Show Cause Notice on 08/06/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner, Central Excise And Service Tax-Bolpur 2023 (4) TMI 124, wherein it has been held as under : 3. The appellant is engaged in the manufacture of excisable goods namely, sponge iron falling under Tariff Item No. 7203-1000 of the Central Excise Tariff Act, 1985 and holding Central Excise Registration since 2002. The basic raw material used in the manufacture of sponge iron, iron ore, coal, and iron ore palettes. The issue involved in this appeal is whether the appellant assessee manufactured and clandestinely cleared goods without payment of Central Excise duty. An audit was conducted during 2014 which ultimately led to the issuance of show-cause notices dated 20th August, 2014, 17th April, 2014 and 3rd February, 2016. It was stated that in the course of verification of ER-7 (Annual Installed Capacity Statement) filed in terms of Sub-Rule 2(A) of Rule 12 of the Central Excise Rules, 2002, it was found that the assessee's annual production capacity is 60,000 metric tonnes but the assessee as per the ER-1 returns during the period October 2009 to March 2014 has not reflected the production and clearance quantity as per their production capacity. It was alleged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly disclosing the case the assessee has to meet. Unfortunately the observation made in the audit objection was taken by the department as gospel truth and without conducting any enquiry or investigation as the authority straight away proceeded to issue the show cause notice. In fact, the reply given by the assessee to the Superintendent, Central Excise department at the first instance was not even taken note of and mechanically the show cause notice was issued. When the assessee carried the matter on appeal to the tribunal, they reiterated the contention which was raised by them in reply to the show cause notice. In paragraph 8 of the impugned order, the tribunal noticed very briefly the contention raised by the assessee and then proceeded to decide the case against the assessee in one paragraphs, paragraph 9. The conclusion arrived at by the learned tribunal is solely based upon the annual production capacity. In the preceding paragraph, we had elaborately set out the stand taken by the assessee in their reply to the show cause notice, the documents which were annexed along with the show cause notice, unfortunately neither the adjudicating authority nor the tribunal adverted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment has failed to discharge the onus cast upon him to prove the charge of clandestine removal. 14. Another point noted by me is that appellant has given higher figures in ER-4 which has been explained by them by way of CA's Certificate. If Appellants were to clear the goods clandestinely, they would have ensured that ER-1 and ER-4 should tally and differential figure would not show in ER-4 Returns at all. The very fact that reflected these quantities in ER-4 makes me to take the view that the explanation given by the appellant is genuine. 15. Therefore, considering the factual matrix with the cited case law, I find that in this case, the entire demand has been confirmed based solely on the basis of audit objection, without giving due consideration to the documentary evidence placed by the appellant. Therefore, on this count itself, I hold that the confirmed demand is not sustainable. 16. Further I also find force in the argument of the Learned Counsel that while the allegation is towards clandestine removal of 946 MT of Steel Ingots, the Revenue has not brought in any corroborative evidence whatsoever to fortify their allegation. No statements have been recorded from the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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