TaxTMI 
TaxTMI 
2015 (4) TMI 738
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....cted. While, in respect of the stock of raw material, shortage of 112.375 MT was found, in the stock of finished goods, shortage of 76.954 MT was found. The total duty/ cenvat credit involved on the raw material found short and finished goods found short was 2,47,446/-. For demand of duty on the cenvat credit availed raw material and finished goods found short, a separate show cause notice was issued which is not a subject matter of the appeal in this case. In course of search of the factory, a file containing 40 sheets was recovered which appeared to certain date-wise details regarding production for the month of June, 2003. This file was placed under seizure. On the same date, the residential premises of Sh. AK Maheshwari, who was the General Manager of the factory of the appellant company during period till May, 2003, was also searched and from his residential premises, 19 sheets, which appeared to be containing details regarding production of the appellant company for January, 2002 were recovered and the same were placed under seizure. 1.1 At that time the residential premises of Sh. KK Somani, Managing Director and his father, Sh. RK Somani was also searched and from their ....
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....also been show caused for imposition of penalty, the penal proceedings against him was dropped. The duty demand was reduced from Rs. 61,86,420/- to Rs. 50,05,014/- on the ground that there were mistakes in calculation of the duty demand on the alleged excess production. Against this order of the Commissioner, these appeals have been filed. 2. Heard both the sides. 3. Sh. Rupesh Kumar, Ld. Counsel, appearing for the appellant, pleaded that the basis of the duty demand are 40 sheets recovered from the factory premises and 19 sheets recovered from the residential premises of Sh. AK Maheshwari Ex. GM of the appellant company, coupled with the statement of Sh. AK Maheshwari and other persons, that other than this, there is absolutely no evidence in support of the allegation of unaccounted manufacture and its clandestine clearance by the appellant company during the months of January 2002 and June 2003, that the appellant company does not has the capacity to manufacture the quantity which is alleged to have been produced during January 2002 and June 2003, that no credibility can be attached to the so called production sheets as is clear from the cross examination of Sh. Gopal Gupta....
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....has upheld the duty demand based on the alleged shortage and also confiscation of the cash, on appeal being filed to Tribunal against the order of the Commissioner (Appeals), the Commissioner (Appeals) order has been set aside vide Tribunal s final order no. 144-145/2013-SM dated 22.02.2012, that in this case when there is doubt about the genuineness of the private records recovered from the factory and residential premises of Sh. A K Maheshwari, duty demand based on the same is not sustainable, more so, when there is no other evidence in support of the Department s allegation regarding unaccounted production and its clandestine removal, that in this regard, he relies upon the Tribunal s judgement in the case of TM Industries vs CCE reported in 1993 (68) ELT 807 Trib., that there is also discrepancy in the production sheets inasmuch as in a number of production sheets, the production has been recorded for overlapping time period, that for example in the production sheets of 16.03.2003, the starting time of the factory in one sheet is shown as 12 O clock in the midnight to 8 AM in the morning, in other sheet, the time is shown from 8AM to 5 PM in the evening and in the third sheet a....
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....om the factory premises and 19 sheets recovered from the residential premise of Sh. AK Maheshwari, Ex GM of the Appellant Company and the Department s allegation is that these production sheets contained date wise details regarding production of their finished goods during January 2002 and June 2003. Though, the Department also relies upon the shortage in the stock of finished goods as well as cenvat credit availed raw material found at the time of search of the factory premises on 19.03.2004 and also recovery of Cash of Rs. 8,30,000/- from the residential premises of Sh. KK Somani, it is seen that the order regarding confiscation of cash and confirmation of duty demand based on the shortage of the inputs and finished goods has been set aside by the Tribunal and, thus, the only evidence in support of the Department s allegation of unaccounted manufacture and its clandestine removal, which still remains, is the 40 sheets recovered from the factory premises and 19 sheets recovered from the residential premises of Sh. AK Maheshwari. In this regard, there is no dispute about the fact that Sh. AK Maheshwari who was General Manager in the appellant company till May 2003 and in fact had s....