TaxTMI 
TaxTMI 
2014 (7) TMI 358
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..... A Show Cause Cum Demand Notice was issued to the appellant alleging clandestine manufacture and removal of a total quantity of 513839 kgs of finished goods without payment of duty of Rs. 6,67,991/-during the period from February 2003 to July 2003. The said demand wasconfirmed by the adjudicating authority. Aggrieved , the appellant had filed an appeal before the learned Commissioner of Central Excise (Appeals) who has directed them to make the pre-deposit Rs. 1,15,102/- as per Sec.35F of CEA,1944. As the appellant could not deposit the directed amount, with in the stipulated period, the learned Commissioner (Appeals) dismissed their appeal for non-compliance with the direction of pre-deposit. Aggrieved by the said Order-in-Appeal, the App....
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....-Mumbai). 2.2 Regarding the allegation that the Appellant had suppressed production of 34115 kgs of tea involving total duty of Rs. 44,350/-, the ld. Advocate submitted that this is relating to production of 212017 kgs of tea as per Daily Manufacturing Report , which also contain materials to be weeded out; the quantity of 177902 kgs of tea capable of being bought and sold were only entered in the RG I Register. It is his submission that the difference between the DMR quantity and the quantity entered in RG I Register, cannot be considered as the quantity cleared without payment of duty, in absence of evidence of its removal clandestinely. 2.....
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....s made by the Departmentfrom the entry in the Cash Book Account to Rs. 79,80,355/-, is also incorrect. He has submitted that the said demand has been erroneously calculated assuming that the entry shown in the Cash Book, is relating to sale proceed of clandestinely cleared goods manufactured in the factory. In arriving the said quantity, the Department has applied therate of tea @ 39/- per kg by mis-interpreting the statement of Shri Anil Tiwari, proprietor of the Appellant. The contention is that the Department has failed to co-relate that the cash received with the quantity alleged to be cleared without payment of duty but assumed that the said amount shown in cash book related to clearance of goods without payment of duty, and hence the ....
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....Appellant could not sufficiently explain the excessive consumption of raw material, namely, green leaf in the manufacture of finished tea during the month of Feb.2003 to March 2003 and the yield is around 20%, hence, the excess consumption of raw material must have been used in the manufacture of finished goodsof 29927kgs which were later cleared without payment of duty of Rs. 38,905/-. Further, the quantity of 5855kgs mentioned in the weighing slips and the clearance of free samples of 45,740kgs from the factory, involving duty of Rs. 7612/- & Rs. 59,462/-, the Appellant could not produce evidence to show that these were cleared on payment of duty. 4. Heard both sides and perused the record.I find that in the impugned order the Ld.Commiss....
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....vided the total amount considering the average price of tea @Rs.39/- per kg. The contention of the Ld Adv. for the Appellant is that except mere allegations and theoretical calculations, surmises and there are no other evidences to show that these goods were manufactured and cleared clandestinely without payment of duty. I find force in the contention of the Appellant. The principle of law is well settled on the issue demand of duty relating to clandestine removals. The Ld. A.R. for the Revenue could not place before me evidences other than calculations based on the figures mentioned in the Registers, consumption of green leaf tea, etc., evidences to show that there had been excess/clandestine manufacture and clearance of goods from the fac....