TaxTMI 
TaxTMI 
2020 (7) TMI 53
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....ailing the benefit of Cenvat Credit of duty paid on inputs and capital goods under Cenvat Credit Rules, 2004. Based on an intelligence, the Central Excise Officers of Preventive Wing, Headquarters, Raipur conducted searches at the factory as well as office premises of the appellant simultaneously on 15.03.2014 in presence of Shri Devi Lal Sahu, OSD of the appellant. Certain documents were recovered from the weighbridge inside the appellant's factory premises on the basis whereof sponge iron weighing 124.790 MT involving Central Excise duty of Rs. 3,47,359/- was alleged to have been removed clandestinely. The Officers also conducted the verification of the stock of raw-material and finished goods and alleged shortage in stock of coal by 1179....
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....dence on record for confirming demand raised by the department. But such order of original adjudicating authority has still been confirmed by Commissioner (Appeals), hence, the same is liable to be set aside. Otherwise also there is sufficient evidence to falsify the allegations raised in the show cause notice. The clearances of appellants were duly declared in their ER-1 /ER-6 returns. The copies thereof were duly provided to the adjudicating authorities but they have ignored the same and have proceeded on their own wrong presumption of it to be a case of clandestine removal. It is further submitted that any record of weighbridge slips is not at all relevant for checking the clearances because the weighbridge exist inside the premises of t....
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....el.) 6. While rebutting these arguments, it is submitted that at the time of the raid, the inputs were not found available. In fact were not used in manufacture of final product thereby resulting into the spillage of inputs. It definitely becomes the case of clandestine removal. The same has duly been admitted by the appellant's OSD. Admissions need not be proved. Hence, there is no error committed by Commissioner (Appeals). While relying upon the decisions in the case of Commissioner of Central Excise, Madras vs. Systems & Components Pvt. Ltd. reported in 2004 (165) E.L.T. 136 (S.C.) & Win Pipes vs. CCE, Cochin reported in 2005 (192) E.L.T. 449 (Tri. - Bang.), ld. D.R. has prayed for appeal to be dismissed. 7. After hearing both the part....
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....that the orders even with respect to weighed goods used to get cancelled and such goods despite being weighed, used to be sent back to the godowns. The adjudicating authority has miserably ignored the admitted existence of weighment bridge within the factory premises and the said submission of the appellant the consideration whereof falsifies the allegations of clandestine removal. 8. I also observe that the shortage is alleged on the basis of an estimate weighment of sponge iron the estimation cannot take place of evidence. Specially, when there is no investigation as to where from the noticed excess inputs were sourced so as to manage such excess clearances. No investigation as regard electricity excess usage. No third party investigatio....
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....ale in following words: Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which 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....
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....331) ELT 340 (P&H), the Punjab & Haryana High Court held that mere shortage of finished goods in stock taking is not enough to hold the charge of clandestine removal. In Chandarpur Enterprises Ltd.-2014(310) ELT 904 (Tri. Del), the Tribunal held that when the quantity of finished goods was determined on estimation basis only, the same cannot be treated as real shortage for alleging clandestine removal. In RS Industries 2014(301) ELT 382 (Tri. Calcutta), it was held by the Tribunal that even when shortage is admitted but no investigation was done to establish clandestine removal of goods, no penal action can be taken against the assessee. 14. Apparently the appellant had earlier deposited an amount of Rs. 12,78,435/- which was got adjusted ....