2018 (7) TMI 598

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.... same for manufacture of dutiable finished goods CPC. On examination of ER-1 Returns, it is found that as per ratio of conversion of IPC to CPC, the Assessee should have manufactured higher quantity of CPC. Show Cause Notices were issued alleging clandestine removal of the goods, on the basis of ratio of conversion of RPC to CPC. The Adjudicating authority confirmed the demand of duty along with interest and imposed penalties. By the impugned Order the Commissioner (Appeals) set aside the impugned Orders except Appeal No. XAP-47 against Order in Original No. 04/MP/ADC/2012 dated 25.01.2012, where the duty of Rs. 31,129.00 was confirmed on the ground of wrong calculation, which is not disputed by the assessee. Hence, the Revenue filed these ....

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....lant has accepted this ratio; however, the appellant has been disputing the same right from the beginning. There is no evidence to prove that this ratio was accepted by the Appellant. I also find that no where the Show Cause Notice states about the correct or incorrect Returns filed by the Appellant. It is only the submissions of the Appellant that their new staff mentioned some wrong figures in the periodical returns which were later rectified by them. However, the impugned order nowhere specifies the types or details of such mistakes in earlier returns. Rather, Ld. Adjudicator Shifted the onus of proving the clandestine removal from Department to Appellant by reasoning that Appellant did not produce any corroborative evidences like Electr....

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....e removal of goods cannot be substantive only on a single parameter i.e. Input Output ratio. The relevant portion of the said decision is reproduced below : "5. We have carefully considered the submissions made by both sides and perused the records. Undisputedly, the demand has been raised for the period from January, 2008 to December, 2008 while relying upon the input output ratio for 1999-2000 and there is no dispute that the demand has been raised only on the basis of input output ratio. The Hon'ble High Court of Bombay in the case of Hindustan Coca Cola Beverages Pvt. Ltd. (cited supra) has held as under : "2. In so far as the present appeal is concerned, the Tribunal in the matter of burden of proof relied on the judgments of the....

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....efore, would not arise." In the instant case also, the demand is based only on a single parameter i.e. input output ratio. Further the input output ratio of the year 1999-2000, has been adopted for working out the demand for the period January, 2008 to December, 2008. We also find that the show cause cum demand notices raised for the earlier and subsequent period to the present demand, have also been set aside. In these circumstances, we do not find that the impugned Order-in-Original is sustainable. Therefore, the same is set aside and the appeal is allowed." 6. In the case of M/s. ShillongIspat and Rolling Mills Vs. Commissioner of Central Excise and Service Tax, Shillong 2017 - TIOL 529 CESTAT KOL held as under : "4.4. We also o....