TaxTMI 
TaxTMI 
2017 (5) TMI 609
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....1985. 2.2 The Appellant unit was issued show cause notice dt. 15.09.1995 demanding duty on shortages found in stock. Reliance was placed on statement of Assistant Manager Shri Madhusudan Tibrewal who accepted some of the shortages in imported POY. In case of indigenous shortage he stated that the shortage is due to issue of material for Texturising purpose and produced issue slips stating that if the same is taken into account, no actual shortage would occur. Shortage of 38,004 Kgs of texturised yarn was due to non accountal of the final product. It was alleged that the shortages have occurred due to clandestine removal of goods. The proposals of the show cause notices were confirmed vide the impugned order dt. 12.12.1996. The Appellants are therefore before us in the present appeals. 3. The Ld. Counsel, Shri D. H. Nadkarni submits that 38,004 Kgs of shortage in Polyster Texturised Yarn has been arrived at by the revenue on the basis of difference in computer sheets withdrawn from Colaba office and RG-1 Register. Another 20121 Kgs of PTY has been arrived at on the basis of PTY physically ascertained. He submits that out of such alleged shortage of 38004 Kgs of PTY a quantity ....
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....He submits that the demand has been wrongly confirmed as there is no iota of evidence of clandestine removal. That there is no evidence of illegal procurement of raw material, utilization of power/ deployment of labour/ absence of any buyer of alleged shortages/ removal and transportation of goods/ receipt of consideration etc. He relies upon the following judgments : (i) Nova Pharmaecuticals Pvt. Ltd. Vs. CCE 2014 TIOL 15 CESTAT (AHM) (ii) Flevel international Vs. CCE 2015 TIOL 2230 HC (DEL) (iii) Vishwa Traders Pvt. Ltd Vs. CCE 2012 (278) ELT 362 (TRI) upheld in CCE Vs. Vishwa Traders 2013 (287) ELT 243 (GUJ) (iv) Sakeen Alloys Pvt. Ltd. Vs CCE 2013 (296) ELT 392 (TRI) as upheld in 2014 (308) ELT 655 (GUJ) (v) Mahesh Silk Mills Vs. CCE 2014 (304) ELT 703 (TRI) as upheld in 2015 (319) ELT A52 (GUJ) (vi) CCE vs. Air Carrying Corp. 2009 (248) ELT 175 (MUM) (vii) CCE., CUS. & SER. TAX, DAMAN Vs. NISSAN THERMOWARE P. LTD. 2011 (266) E.L.T. 45 (Guj.) 3.1 He also submits that since there is no clandestine removal, therefore there is no ground to impose penalty upon the directors and employees who are also Appellants in th....
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....lerical mistake in recording the quantity. That the said quantity was taken directly in opening stock on 27.03.1994. The Ld. Adjudicating authority has merely held that the Appellant did not enter the said quantity in RG-1. We find that it remains undisputed that the opening balance of 27.03.1994 contains the said quantity. The Adjudicating authority did not give any findings on the submission of the Appellant and therefore it cannot be said that there is any shortage. As regard alleged shortage of 19406.320 Kgs of Yarn, I find that the Executive Director in his statement dt. 23.11.1994 had stated that the difference in quantity is due to rewinding of metal caps to paper caps. The adjudicating authority refused to accept the submission of Appellant on ground that there is no challan. Apart from the aforesaid reason, no other basis has been shown for confirming the demand. The absence of challan or documents towards reprocessing cannot be a ground to allege shortages and demand duty. Similarly in respect of other shortages, the Appellant had provided reconciliation statements. However the same was not accepted by the adjudicating authority by discrediting the records and submission ....
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.... case of Vikram Cement - Final Order Nos. A/1419-1421/2012-SM(BR), dated 4-10-2012 [2012 (286) E.L.T. 615 (Tri.)] and Punjab & Haryana High Court judgment in the case of CCE v. Luxmi Engineering Works - 2010 (254) E.L.T. 205 (P & H). As the Revenue has failed to bring on record any evidence showing illegal manufacture and removal of their final product, I find no justification in upholding the confirmation of demand of duty or imposition of penalty on both the appellants 6. In case of Vikram Cement (P) Ltd. Vs. CCE, Kanpur 2012 (286) E.L.T. 615 (Tri. - Del.) the Tribunal held as under : 8. As regards clandestine removal, Revenue's case is based upon recovery of the some loose sheets during the course of search of the factory. I have seen the said loose papers, which are relied upon documents in the show cause notice. On going through the said loose documents, I find that there is no indication to show that the same belonged to cement. Revenue has taken into consideration the statement of Director, which is to the effect that number of bags, figures reflected in the said loose papers relate to the cement which stand cleared by them clandestinely. 9. The issu....