TaxTMI 
TaxTMI 
TaxTMI 
2017 (7) TMI 398
X X X X Extracts X X X X
X X X X Extracts X X X X
....the charge of clandestine removal of the goods. The Adjudicating Authority confirmed the demand of duty of Rs. 30,19,533/- alongwith interest and also imposed penalty of equal amount of duty and a penalty of Rs. 1,00,000/- on the Respondent No.2. By the impugned order, the Commissioner (Appeals) modified the Adjudication Order in so far as it has confirmed the demand of duty of Rs. 13,798/- alongwith interest and imposed penalty of equal amount of duty on the assessee and also reduced the penalty on the Respondent No.2 to Rs. 25,000/- and rest part of the order is set-aside. Hence, Revenue filed this appeal. 2. Heard both sides and perused the appeals records. 3. The charge of clandestine removal has been framed on the basis of four issues namely, (i) shortage in stock taking, (ii) Production Slip (pink coloured), (iii) transport slip and (iv) a consignment sent to M/s. BMW Industries. 4. The ld. A.R. appearing on behalf of the Revenue reiterates the grounds of appeal. He also drew the attention of the Bench to the annexure to the Show Cause Notice of summary of the goods reprocessed in the remarks column. 5. On perusal of the grounds of appeal, I find that the Revenue proceede....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A clearance with Central Excise invoice, date. The Commissioner (Appeals) reproduced the said chart in his order and observed as under: "From above it is seen that the bulk goods of the seized production Slips were packed and cleared on payment of duty. While packing, sometimes previous stock of bulk products was also added to complete the requisite packs. No abnormality is observed in such a practice. Only the statements of officials, which say that goods under the Production Slips are not entered in the DSA and the Production Slips are not retained after BIN cards are generated, are the evidences relied upon by the department to level the charge of clandestine removal. No abnormality is observed in the fact that bulk products under the production Slips are not entered in the DSA. It is shown in the Statement submitted that the bulk goods under the seized Production Slips were totally packed and cleared on payment of duty. When goods take totally finished character, BIN cards are generated. There does not remain any necessity now to retain the Production Slips. Even then, if these Production Slips were the means of clandestine and excess production, as alleged by the department,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....], the Tribunal held as under: "15. It is also settled law that merely on the basis of statement of director, charge of clandestine manufacture and clearance cannot be established. Appellant's reliance on CCE v. Seven Seas Corporation, 2010 (259) E.L.T. 652 (Bom.) wherein the Bombay High Court has held that in the absence of any other material to corroborate the confessional statement by the person in charge of the business, the liability cannot be fastened on the persons. Evidence is not coming up in strength to argument the charge of clandestine activity. Their contention is fortified by Tribunal's decision in 2006 (200) E.L.T. 234 where it was held that entries in rough register could not be made the sole basis for concluding clandestine manufacture. 16. It is settled legal position that the demand cannot be worked on the basis of mere meter readings or power consumption. The demand has been computed on the basis of formula of 45 bags production per unit consumption of power. I find that there is no reference in the impugned show cause notice and the adjudication order about any specific study undertaken in this regard. No technical basis of such calculation has been....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of 1962 empty bags valued at Rs. 11,572/-. Commissioner has confirmed the seizure and ordered for confiscation under Rule 173Q(T) of the Central Excise Rules, 1944. I do not find any valid reason for seizure of empty bags which are packaging material. It is agreed that due account of these bags has to be made. But mere non-entry of small number of bags cannot warrant such a severe action. No intention has been brought on record by the adjudicating authority to indicate that these bags were to be used for packing clandestinely manufactured cement and consequent clearance without payment of duty. On this account, I do not find force in the department's finding. Accordingly I do not hold the seizure/confiscation and set aside the redemption fine imposed on the appellant." (b) In the case of Hissar Pipes Pvt. Ltd. Vs. Commissioner of C.Ex., Rohtak [2015(317) E.L.T. 136 (Tri.-Del.)], it has been held as under: "3. I find that the entire case of the Revenue is based only on the shortages detected at the time of visit of the officers as also statement of the Director. Whether the charges of clandestine removal can be upheld on the shortages so detected stand considered by the Tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....there being any admission of clandestine removal, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and is required to be discharged effectively. Clandestine removal cannot be presumed merely because there was shortages of the stock or on the recovery of some loose papers. 10. As such, I am of the view that the statement, which was recorded on the date of visit of the officers, cannot, when standing alone, take the place of evidence so as to hold against them, especially when the appellant have explained that the said loose papers may relate to various stockists, which are working from their premises on rental basis. 11. Apart from the above, I note that the truck numbers as also complete name of the purchasers was duly mentioned in the said loose papers. For the reason best known to the Revenue, they have made no efforts to go to the transporters, truck drivers etc. and to the buyers to arrive at the truth. In Majority decision in the case of Tejal Dyestuff Industries as reported in 2007 (216) E.L.T. 310 (Tri) Tribunal held that the Revenue cannot make its case on the basis of statement alone in the absence....