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TMI Blog2025 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed :- "The appellant had been informed by the department about the hearing be conducted on 10.10.2024. An email has been sent by the learned chartered accountant for the appellant that hearing be conducted by virtual mode and the link be sent to them. The Court Master has informed that the link was sent at the address mentioned in the letter sent by the chartered accountant. 2. Case has been called out but no one has appeared on behalf of the appellant. List the appeal on December 19, 2024. 3. It is made clear that the appeal may be decided on merits even if the appellant does not appear". 3. When the matter was called today, nobody appeared on behalf of the appellant. We have heard Shri Bhagwat Dayal, learned authorized representative for the Revenue and perused the records and proceed to decide the matter as indicated on 10.10.2024. 4. The facts which led to the issue of the impugned order are that the appellant is registered with the Central Excise department and used to manufacture SS Billets, SS Flats, SS Rounds and MS Billets falling under Chapter 72 of the Central Excise Tariff. It was also availing the Cenvat credit on inputs, input services and capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds : - (i) The charge of clandestine manufacture of SS Flats and of suppressed production of SS Billets has not been established by the department through corroborative evidence and the demand was made only on the basis of the records. No cogent positive evidence to establish the purchase of unaccounted for raw material or clandestine manufacture and removal have been established. (ii) The charge of clandestine manufacture of SS Flats and of SS Billets is without any cogent evidence and, hence, is unsustainable. No evidence has been provided by the department to establish clandestine removal of SS Flats. No evidence of out-road transport, lorry receipt issued by the transporter, unaccounted dispatch of finished goods have been produced by the department. (iii) Clandestine manufacture and clearance need to be proved with positive and cogent evidence and it cannot be based on assumptions and presumptions. (iv) Extended period of limitation is not invokable in the present matter. (v) The imposition of penalty under Section 11AC is not sustainable. (vi) Interest is not recoverable as the duty itself is not recoverable. (vii) The duty confirmed in relation to use refra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng SS Billets, Flats, Rounds etc. without recording them in the RG-1 register. This allegation is based on the records recovered from the appellant itself which showed actual daily production of the goods. The quantity of goods shown as manufactured in the RG-1 register was lower than the quantity mentioned in the private registers. The present demand pertains to only two months namely August 2010 and September 2010. The appellant does not dispute the recovery of the documents or that the registers were their own records maintained by the staff. The submissions of the appellant is that the department failed to establish the clandestine manufacture and removal and sale of the goods through positive, cogent evidence. 12. Clandestine removal, by its their nature, is secretive. If every transaction is recorded in official registers and documents are issued, then there cannot be clandestine removal. Therefore, clandestine removal can only be established through indirect evidences. In this case, the evidence is in the form of the records maintained by the appellant itself as private registers which showed higher production compared to what was recorded in RG-1 register. The appellant ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty under Section 11AC also needs to be upheld. 17. After the matter was reserved for orders, a letter dated 07.03.2025 was received on 12.03.2025 from M/s Shyam Sel and Power Limited stating the appellant had undergone Corporate Insolvency Resolution Plan (CIRP) under the Insolvency and Bankruptcy Code, 2016 and an order has been passed by the National Company Law Tribunal, Mumbai and that M/s Shyam Sel and Power Limited had taken over the appellant. It further says as follows :- "Once a resolution plan is duly approved by the adjudicating authority under section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the creditors (including statutory authorities, employees and guarantors)." Hence, the stipulations of the Approved Resolution Plan are legally binding upon all stakeholders, including Governmental Authorities, which are required to comply with the provisions of the Code and reliefs granted under the Resolution Plan. Please note that REVENUE DEPARTMENT, CGST & CENTRAL EXCISE, DIVISION - II, PITHAMPUR, had already lodged previous dues during the CIRP period with Resolution Professional and the same had already been dea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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