2018 (4) TMI 363

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....y premises of the appellant on 27/02/2013. Accordingly, a show cause notice has been issued to the appellant, on the following issues :- (i) demand of Rs. 37,60,496/- on the basis of documents of the transporters i.e. M/s TCI XPS (Third Party); (ii) Demand of Rs. 2,78,700/- on alleged shortages of raw material and finished goods ; (iii) Demand of Rs. 73,139/- on the basis of photocopies of two invoices bearing no. 33 and 34, both dated 11/01/2013 issued to M/s R.L. Enterprises, D-55, Moti Nagar, New Delhi ; (iv) Demand of Rs. 38,934/- on the basis of a diary, which contains one entry showing 'Cash Sale, 300 kg., Aditya Metacom @ Rs. 1,050/- ; (v) Demand of Service Tax of Rs. 61,199/- on the groun....

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.... On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions". 4. Apart from above, there are number of decisions laying down that the findings of clandestine removal cannot be upheld on the basis of the documents recovered from third party premises. ....

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....- 2011 (274) E.L.T. 180 (All.) (c) CCE & ST, Ludhiana vs. Anand Founders & Engineers - 2016 (331) E.L.T. 340 (P&H) and (d) Shahi Exports Pvt. Ltd. vs. CCE & ST, Ghaziabad - 2017 (347) E.L.T. 310 (Tri. - Del.). I find that apart from the shortages, there is virtually no other evidence on record to reflect upon the clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands. Reference can be made to the Hon'ble Allahabad High Court decision in the case of Minakshi Castings reported as 2011 (274) E.L.T. 180 (Allahabad) as also the Hon'ble Punjab & Haryana High Court in the case of CCE, Ludhiana vs. Ne....

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...., demand cannot be confirmed on the basis of some entries etc. The said decisions stand confirmed by Hon'ble Allahabad High Court in the case of Commissioner vs. Vikram Cement (P) Ltd. - 2014 (303) E.L.T. A82 (All.). Even in the case of CIT vs. Dhingra Metal Works - 2010 - TIOL - 693 - HC - DEL - IT, it was held that inculpatory statement by itself is not sufficient without the matters having been further investigated. Accordingly, I find no reasons to confirm the said demands and set aside the same. 7. Further, demand of Rs. 61,199/- stands confirmed in respect of service tax payable by the appellant on the GTA services, so received by them. The appellant have admitted the service tax to the tune of Rs. 28,690/- and in respect of the ba....