TaxTMI 
TaxTMI 
2018 (3) TMI 1479
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cleared the goods using Tax Invoice of M/s. V. S. Ispat. It has further alleged that they have cleared the finished goods using the Tax Invoice and Challans of the Trading unit situated at Dankuni Hooghly. The demand of duty was also raised on the basis of loose slips recovered from the Factory Premises of the appellant company. By the impugned Order, the Learned Commissioner of Central Excise, Bolpur confirmed the demand of duty of Rs. 48,61,356.00 along with interest and imposed penalty of equal amount of duty on the appellant. It has refrained from imposing penalty on Shri Hari Mohan Beriwal, Managing Director of the appellant company. Hence, the appellant filed this appeal before the Tribunal. 2. The Learned Counsel appearing on behalf of the appellant submitted that the appellant is engaged in the manufacture of the excisable goods at their factory at Durgapur. They have also sales from its Godown at Dankuni which is not registered with the Central Excise department. They are storing duty paid goods as well as open market purchased goods in the said Godown. It is submitted that the goods that were cleared from their Dankuni Godown had been treated as clearance from the facto....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icating authority mainly proceeded on the basis of the clarification of the Palsit Toll Plaza. It is seen that the Investigating Officers had not made any enquiry from the Transporter. On the other hand the appellant placed various evidences in support of their contention that the goods were removed from the Dankuni Godown. In my considered view, the appellant placed the various evidences which were not discarded by the lower authorities. Therefore, the charge of clandestine removal of the goods from the factory in respect of 34 Invoices to M/s. Rosedale Developers cannot be sustained. The appellant contended that the Learned Commissioner accepted the letters of the Transporter submitted by the appellant that the goods to M/s. Rosedale were transported from Dankuni Godown. The Learned Commissioner has also referred to the letter dated 19.11.2010 of M/s. Rosedale Developers, where they had clarified that the goods had been received from the Dankuni Godown and dropped the demand partly. The appellant contended that the Consignment Note in some cases would show the dispatch from Durgapur as the empty Truck diverted from Durgapur to Dankuni and raised the freight charges accordingly. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. But the Adjudicating authority had confirmed the duty merely on the basis of surmise and conjecture. 7. There are demand of duty on the basis of loose slips on removal of goods to Guwahati DLF Limited, M/s. Super Diamond Nirman Limited, M/s. B. G. Shirke, Pune etc. In these cases the appellant had taken a clear stand that the goods were supplied from Dankuni under Tax Invoices supported by Sales Tax Return, Stock Register and Affidavit of Shri Sunil Kumar Jha, Weighment Supervisor. The Transporter has also confirmed transport of goods from Dankuni Godown and raised bills from Dankuni Godown. There is also demand of duty of Rs. 2,48,932.00 on the basis of removal of goods on weighment slip. It has been alleged that the appellant have not produced any proof that these weighment goods were returned to the Factory. In this context the appellant submitted all the Five weighment slips. There is a clear endorsement, For Weighment Checking . The case of the appellant is that the weighment slips were issued for checking the weighment machine and that cannot be the basis for demanding duty. 8. The Adjudicating authority observed that the appellant did not follow the procedure laid down ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence, allegation of clandestine removal cannot be upheld. 11. In view of the foregoing, I set aside the impugned order and allow the appeal with consequential relief to the appellant." 10. In the case of Shankar Nachrani Vs. Commissioner of Central Excise & Service Tax, Raipur 2017 (348) ELT 349 ( TRI DEL). The Tribunal held as under : "6. The present appeals are relating to allegation of clandestine manufacture and clearance of excisable items viz. M.S. Channels. Admittedly, the evidences collected by the Department from third party is with reference to M.S. Ingots purported to have been supplied to the main appellant without proper accounting. All the evidences relied upon in the proceedings before the lower authorities relate only to such supply of 81 MTs. of M.S. Ingots. The appellants denied receipt of the said ingots in the statement given before the officers. Admittedly, the clandestine manufacture and non-duty paid clearance of M.S. Channels have been inferred from the evidences collected for supply of raw materials from third party. While there is a basis to proceed with further investigation to establish clandestine manufacture and clearance, the case is not complete....
X X X X Extracts X X X X
X X X X Extracts X X X X
....haney of GSCL. It is observed from the statement dated 25-1-2006 of Shri Rajnish Gambhir that a method was suggested by Shri Sahaney in distress where his daughter was sick and he has to leave during the search proceedings. Answer to Question No. 13 of statement dated 25-1-2006 also makes it clear that Shri Rajnish Gambhir was not in agreement with the stock taking done and mentioned on the stock-taking report as provisionally and it is required to be verified . It is observed from stock verification report dated 7-9-2005 that stock-taking is endorsed by his authorized representative but it is remarked that the same is required to be actually verified by him and signed provisionally. Appellants have relied upon various case laws on this issue as reflected in Paragraph 2.2 above. When on the date of stock taking itself appellant was reluctant to sign the stock-taking made by the department and the authorized representatives then it cannot be said that GSCL has extended any concessions to the department in stock taking in whatever manner they want. Stock was required to be verified on actual weighment basis as per relied upon case laws and not on the basis adopted by the department w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of clandestine clearances of Iron and Steel products by GSCL is not established. The case laws relied upon by the Adjudicating authority discussed in Para 16(v) of the Order-in-Original do not rule that cross-examination should be denied in all situations rather in the case of Mahendra Nath Chatterjee v. CCE [1977 TaxLR. 1754], as mentioned by the Adjudicating Authority in Para 16(v), Calcutta High Court observed that each case has to be seen independently." 12. In the case of Commissioner of Central Excise, Raipur Vs. Ravi Vashwani 2017 (347) ELT 351 ( Tri-Del) it has been held as under : "5. On appeal, Commissioner (Appeals) observed that the entire case of the Revenue is based upon the recovery of certain loose sheets as also private register, which cannot be held to be sufficient evidence. He further observed that such loose pieces of paper which does not contain authenticated information and maintained by various personnel employees for their own experimental purpose, cannot be made a basis for upholding the charge of clandestine removal. By relying upon various decisions of the Tribunal, he observed that investigation have failed to establish for unaccounted/excess raw mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t and further manufacture of unaccounted excisable products, the investigation stopped. There was no further inquiry or verification regarding transportation, actual manufacture of M.S. Ingots, thereafter M.S. Angles, using such clandestinely procured raw materials. In other words, the whole demand rests only on the admission statement of the Director/partner of the appellant/assessee. In the case relied on by the ld. AR, M/s. S.M. Steel Ropes (supra), there was recovery of delivery challans from the appellant s premises during the investigation. These were corroborated by the statement of the Director, who admitted to the turnover of the company. In the present set of appeals, there is no corroboration of the admission made by the Director/partner of the appellant/assessees. In Hissar Pipes Pvt. Ltd. - 2015 (317) E.L.T. 136 (Tri.-Del.) examined the various case laws in a similar sets of circumstances. The Tribunal relying on the decision in Commissioner v. Manoj Kumar Pani - 2010 (260) E.L.T. 92 (Tribunal), Tejwal Dyestuff Industries - 2007 (216) E.L.T. 310 (Tribunal) and Hon ble Delhi High Court in Dhingra Metal Works - 2010-TIOL-693-HC-DEL-IT held that though confessional statem....