TMI Blog2005 (8) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... or removal of recent origin, on date of search would have been found on the visit on information and by surprise by the officers. No such material exist. Mere unauthorised and clandestine manufacture of PTY, as alleged by Revenue, cannot be established without 'removal'. 'Unauthorized and clandestine' are words associated more with 'removal' than production. The findings of the Adjudicator are mere ipsi dixit and cannot be sustained, in absence of any corroboration of tainted removals. Since, the burden of clandestine Removal is not discharged, the reliance on Kanungo Co.[ 1972 (2) TMI 35 - SUPREME COURT] and Siemen Ltd.[ 1993 (8) TMI 193 - CEGAT, CALCUTTA] by the adjudicator cannot be upheld. We find that if the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordering inter alia- (i) Confirming duty demand under Section 11A. (ii) Imposing penalty under Rule 173Q(1) on the assessee and under Rule 209A on the Director. (iii) Ordering confiscation of Land, Building Plant Machinery belonging to the assessee or in their possession under Rule 173Q(2)(a) of the Central Excise Rules, 1944 and giving them an option to redeem them on payment of redemption fine of Rs. 25,000/- 1.2 Scrutiny of the 'Daily Production Report Book' showing the consumption of viz Oil RPM; Oil Consumption, percentage (%) of oil and up to date Oil Consumption and from the scrutiny of 'Operator/Daily Production Reports showing various summaries viz name of the operator, Oil RPM, POY quantity, temperature, machine stoppa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reality. Assumptions made to base such theoretical calculations cannot be upheld to bring home the charge of clandestine production and removal. In any case, Anti Static Oil is not the major input, the major input is POY; to manufacture all the unaccounted quantity of PTY, POY is required to be processed. No such evidence exists of unaccounted POY receipts and or use. Reliance is well placed on the Supreme Court decision in case of Oudh Sugar Mills - 1978 (2) E.L.T. (J 172) (S.C.) to not uphold this working out of clandestine production and unaccounted removal, (b) (i) The appellants plea that the Oil in question was being shifted from stores to the production area in buckets and loss pleaded on such transport were not even considered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relative acts. If unaccounted production was being resorted by the assessee, some material indicating unaccounted production and or removal of recent origin, on date of search would have been found on the visit on information and by surprise by the officers. No such material exist. Mere unauthorised and clandestine manufacture of PTY, as alleged by Revenue, cannot be established without 'removal'. 'Unauthorized and clandestine' are words associated more with 'removal' than production. The findings of the Adjudicator are mere ipsi dixit and cannot be sustained, in absence of any corroboration of tainted removals. Since, the burden of clandestine Removal is not discharged, the reliance on Kanungo Co. [1983 (13) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be relied upon by Revenue, the same cannot be discarded, as regards POY Consumption PTY production also shown with same clarity of detail shift wise etc. The ld. Advocate for the appellants has produced material figures, from the said record and the RG1 figures, to indicate that the records as regards entries of POY consumption PTY manufacture cannot be disputed. These figures/charts do not demonstrate that unaccounted PTY was ever manufactured or and removed. (f) We find the notice was issued on 24-3-2000 and the allegation of unaccounted production is for the period March 1994 to November 1994 April 1995 to March 1996. Part of the period is clearly barred by limitation of even 5 years. The period within 5 years also cannot be upheld for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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