TaxTMI 
TaxTMI 
2019 (6) TMI 869
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....missioner (Appeals) has confirmed the Order-in-Original No. 86-87/ADC/CEX/IND/2015-16 dated 05.11.2015. By the said Order-in-Original the primary Adjudicating Authority has confirmed the demand against the appellant , namely, M/s Ganpati Structures Private Limited Plot No. 8 Sector E, Industrial Area Sanwer Road, Indore (MP) and also on its Director Shri Ashok Joshi against whom penalty was imposed. The Order-in-Original was in respect of two Show Cause Notices dated 16/07/2010 and 11/02/2004. Aggrieved by the impugned order appellants have preferred these appeal. 2. Brief facts of the case are that the appellant, M/s Ganpati Structure is engaged in production and clearance of steel re-rolling products falling under chapter 72 and 73 of ....
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....hment slips(kanta parchi) were also recovered which indicated vehicle number, gross weight, tare weight and net weight of the goods loaded in the vehicle. In the resumed file No. 1, at page 37 and 38, there were date wise entry regarding vehicle number, gross weight, net weight for 21/02/2009, 25/08/2009, 26/08/2009, 27/08/2009 and 28/08/2009. On perusal of these loose sheets, the officers of the Department concluded that the appellant had cleared these goods without payment of Central Excise duty. Against this background the Show Cause Notices were issued to the appellants which were confirmed by the primary Adjudicating Authority and subsequently upheld in the impugned order. 4. Ld. Advocate, on behalf of the appellant, submits that th....
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....d turnover of the appellant company amounting to Rs. 1,43,30,880/- for the Financial Year 2008-09 making total turnover of Rs. 1,69,97,208/-. To this effect, it is the submission of Ld. Advocate that other than the alleged weighment slips there were absolutely nothing to corroborate the allegation. No statement was recorded from Director of the appellant (the other appellant in these appeals) regarding this clandestine removal alleged by the Department. (ii) It was further submitted that this weighment slips pertained to other units, who have got weighment done on the weighbridge of the appellant, and therefore, could not be added towards the manufacture and clearance of excisable goods by the appellant. The Department did not take any s....
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....ependent evidence. The reliance was placed on the decision of this Tribunal in case of Arya Fibres Private Limited vs. Commissioner of Customs and Excise, Ahmedabad-II reported as 2014 (311) ELT 529 (Tri.-Ahmd), wherein it is held that clandestine removal is a serious charge which needs to be proved by the Revenue on production of sufficient and tangible evidences. Ld. Advocate placed reliance on the decision of Varun Enterprises vs. CCE & ST [2019 (TIOL) 58 (Cestat-Del), wherein the demands were solely confirmed on the basis of diaries and loose papers recovered from the premises of assessee, were held to be unsustainable. The Department also failed to cause inquiry from raw material suppliers, transporter, excess use of electricity etc., ....
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....; "40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not infere....
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.... is required to be discharged by the Revenue by production of sufficient and tangible evidence. 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. 13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is....