TaxTMI 
TaxTMI 
2015 (7) TMI 498
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.... to 200/VDR-II/2008, dt. 28.11.2008 issued on 05.11.2008. Shri Shankarlal D. Mehta, Director and Shri Girish B. Prajapati (Manager) of the main Appellant have filed appeals with respect to the penalties imposed by the Adjudicating authority and upheld by the First Appellate Authority, under the above mentioned OIA. Appellant M/s Super Forge India Ltd has also filed appeal with respect to penalty imposed by the Adjudicating authority. 2. Shri D.H. Dharmadhikari (Advocate) appearing on behalf of the Appellant argued that the main Appellant is manufacturing Stainless Steel Ingots by using Stainless Steel Scrap, S.S. Turning Scrap, Chromium, Silicon, Aluminum etc. That the case of the Revenue is that the main Appellant has clandestinely remo....
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....5 MT per month. That clandestine removal on the basis of a diary without corroborative evidences; like procurement of excess raw material, transportation of finished goods, excess power used etc; is not sustainable. That entries made in the diary are only with respect to orders booked and not clandestine manufacture and clearances. That the demand solely based on a private diary and few confessional statements is not sustainable in view of the following case laws:- i) CCE Vs Sakeen Alloys Pvt. Ltd. [2014 (308) ELT 655 (Guj.) ] ii) Sakeen Alloys Pvt.Ltd. Vs CCE Ahmedabad [2013 (296) ELT 392 ((Tri-Ahmd)] iii) CCE Ludhiana Vs Renny Steel Castings Pvt. Ltd. [2012 (283) ELT 563 (Tri-Del)] iv) CCE Coimbatore Vs Sangamitra Cotton Mills....
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.... On the other hand, the main Appellant is of the argument that their production capacity per month is only 225 MT/month as per the Chartered Engineer s certificate, which is also supported by the quantities indicated in monthly Excise returns submitted. It is also the case of the main Appellant that the demand of clandestine removal cannot be considered as sustainable only on the basis of private records and few statements without other corroboration as per various relied upon case laws. 4.1 It is observed from the Chartered Accountant s certificate dt.10.10.2007 that Appellant has been certified to have a monthly production capacity of 225 MT. Approximately same quantities of S.S. articles have been reflected in the monthly returns file....
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....ine transactions involved in such suspected clandestine removals. Under similar factual matrix, this Bench in the case of Sakeen Alloys Pvt.Ltd. Vs CCE Ahmedabad [2013 (296) ELT 392 (Tri-Ahmd)], after discussing several case laws on the issue in Paras 9 & 10, held in Para 11 as follows:- "11. From the above settled law, it is clear that in a clandestine removal case, the facts of clandestine removal of excisable goods cannot be established only on the basis of certain statements which are retracted later but there has to be positive evidences like purchase of excess raw materials, shortage/excess of raw materials/finished goods found in the stock/factory premises of the appellant, excess consumption of power like electricity, any seizure....
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....of M/s. Sunrise Enterprise, Mehsana was found containing the goods received from M/s. Sakeen Alloys Pvt. Limited under proper invoices. When the goods received under proper invoices are found in the stock yard of M/s. Sunrise Enterprise, then it is possible that out of such goods certain quantities were sold to various customers by accepting payment in cash. In such a situation, the quantification undertaken by the investigation becomes doubtful and incorrect. For this purpose cross-examination of the person Incharge looking after the records of M/s. Sunrise Enterprise was must, which was not allowed by the adjudicating authority. In view of the above observations, the demand of duty of Rs. 1,85,10,861/- is not sustainable and is required t....