TaxTMI 
TaxTMI 
2017 (3) TMI 779
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....neral Manager (Commercial), were recorded on 17.02.2009 and 18.02.2009. Statement of Shri Anand Tiwari, Deputy Manager (Process Division- Sponge Iron) was also recorded on 18.02.2009. 3. On the basis of the seized records, the investigations made and the statements recorded the proceedings were initiated against the appellant proposing the confirmation of demands to the extent of Rs. 44,90,994/- under various heads. The show cause notice culminated into the impugned order passed by the Commissioner confirming the demand as proposed as also imposing penalties. The said order of the Commissioner is impugned before the Tribunal. 4. The various heads under which duty stands confirmed along with appellant's defense submission are as under: i) Duty of Rs. 59,175/- in respect of 21.530 MT of TMT bars valued at Rs. 5,74,510/- found short during the stock taking on 18.02.2009 . On this it is submitted that the RG-1 indicated stock of 1296.212 MTs of TMT bars whereas the stock taking showed balance of 1274.628 MTs resulting shortage of 21.530 MTs (which is 1.66% of the recorded stock). This difference has been admitted by the appellants, but has been attributed to different methods adopt....
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....computer in the course of the said activities [Section 36B(2) refers]. That is why section 36B(4) makes it mandatory for production of a certificate by a person occupying a responsible official position listing out the above precautions. No such certificate has been produced in the instant case. In this context, it is submitted that the requirements of Section 36B cannot be diluted. In the case of Anvar P.V. vs P.K. Basheer [MANU/SC/0834/2014- para 22 refers] the electronic evidence was rejected simply on this ground. The Supreme Court decision refers to requirements under section 65B of the Evidence Act, which is pari-materia Section 36B of the Central Excise Act, 1944. Similar views have been expressed by the CESTAT in the case of Ambica Organics reported in 2016(334)ELT97(Tri-Ahmd) which has been upheld by the Gujarat High Court as reported in 2016 (334) E.L.T. A67 (Guj.)]. Further, none of the two officers whose statements were recorded, were confronted with these documents. On the contrary the appellants were maintaining 'Log sheets' and 'Billet Registers' pertaining to the manufacture of MS Billets. The entries in the 'Billet Register' were rounded off to the near....
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....tructure. E.g. 'Storage Tanks' are specifically covered in the definition of 'capital goods' under Rule 2(a) (A) (vii) of the Cenvat Credit Rules, 2004. Further, pipes, fitting and structures for boiler systems are also eligible for Cenvat Crefdit under this definition (Circular No: 964/07/2012-CX., dated 2-4-2012). Also see KCP Ltd vs CCE, Guntur- 2009(237)ELT500(Tri-Bang) approved in2010(250)ELT326(Kar). CCE, Tiruchirapalli vs India Cements Ltd -2012(285)ELT341(Mad), CCE, Jaipur vs Rajasthan Spinning & Weaving Mills Ltd - 2010(255)ELT481(SC). In view of the above, no amount can be demanded against the quantity of 43.660 MT of TMT bars captively consumed in the factory. (v) Demand of Rs. 24,70,960/- relating to 1291.950 MTs of Sponge iron valued at Rs,.1,86,74,345/-, being the quantity clandestinely cleared. This figure has been arrived at by the department on the basis of 55% recovery of sponge iron from Iron-ore. In this context it is submitted that production cannot be presumed on the basis of mathematical calculations. The recovery percentage will depend upon the quality ( Iron content) of the iron ore. The Constitution Bench of the Supreme Court in the case of Oudh Sugar M....
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....upon by the appellant is to the effect that no duty can be confirmed on the basis of such shortages. As such by following the same, I set aside the confirmation of the said demand. 7. Demand of Rs. 1,13,541 is based upon recovery of loose computerized sheets. As rightly contested by the Ld. Advocate such loose computer sheets cannot be formed the basis for arriving at the findings of the clandestine removal in the absence of the fulfillment of conditions of section 36 B(4) of the Central Excise Act. The various decisions relied upon by the Ld. Advocate are properly applicable to the facts of the present case. As such I hold that the confirmation of the said demand is not justified. The same is accordingly set aside. 8. Further, demand of Rs. 7,14,661/- is based upon the difference between the appellants private records and the RGI registers. Apart from the fact that the appellant have been able to explain such discrepancies properly, I also note that there is no evidence worth reliance to show that the appellants have manufactured the said quantity of 176 MT of TMT bars and has removed the same clandestinely. No identification of the suppliers of the raw materials, buyers of the ....