TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 315
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....-material available in the appellant's premises that the appellants are engaged in procuring of unaccounted raw-materials for illicit manufacture of finished goods and its clandestine removal without payment of Central Excise duty. The said proposal was confirmed vide Order-in-Original bearing No.68/Adj./2016 dated 23.03.2017. The appeal thereof has been rejected vide the order under challenge. Still being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. K.K.Menon, ld. Counsel for the appellant and Mr. P. Gupta, ld. Authorised Representative for the Respondent. 3. It is submitted on behalf of the appellant that in fact, there is no shortage in the finished goods/unfinished goods or raw-materials as is alleged by the Department, based upon the documents recovered from the office and factory of the appellant alongwith two months data of weighbridge extracted from the factory. It is submitted that appellant was unable to reconcile those documents at the time of search due to which the show cause notice was issued. However, two replies have duly been given to the Department dated 30th September, 2016 and 21 March, 2017 citing major deficiencies in the investigati....
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....rity despite the relevant challans for sending the goods for job work and receiving the same after job work were submitted with the Department. With these submissions, appellant has prayed for the order under challenge to be set aside and the appeal to be allowed. 5. Learned D.R. on the other hand has submitted that the appellant has sufficiently accepted the duty liability and in fact had paid the total amount, as was demanded, vide their cenvat account entry. The facts of clandestine removal further stood corroborated with the admission on part of the representatives of the appellants. Admissions need not to be proved. Hence, no other evidence was required to be collected by the Revenue. The demand has rightly been confirmed. The only reason that the declaration under Notification No. 214/86-CE dated 25.03.1986 entitling exemption to Sona Wires for job work cannot be a ground to accept that the goods were lying with Sona Wires for job work. Justifying the order, appeal in hand is prayed to be dismissed. 6. After hearing both sides and perusing the record, I am of the opinion as follows: From the findings under challenge it is observed that the demand has been confirmed on the ....
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....the supportive documents which are sufficient enough to falsify the opinion of the Revenue formed at the time of the investigation. 9. The another ground for confirming the demand is the shortage noticed after physical verification of the goods, admittedly the goods were verified on the basis of eye estimation. Tribunal Delhi in the case of CCE Vs. Sigma Castings Ltd. reported in 2012 (282) ELT 414 has held that where the shortages have been made purely on eye estimation basis without any actual weighment of the goods the demand alleging clandestine removal cannot be upheld. In another decision of RHL Profiles Ltd. vs. CCE, Kanpur - 2013 (290) ELT 247 (Tri.-Delhi) it was held that the shortage detected on the basis of average weight of finished goods without any other corroborative evidence to reflect upon the clandestine removal cannot lead to confirmation of demand of duty against the appellant. 10. The removal of inputs was also not taken into consideration while alleging the shortage of stock. The eye estimation of stock without any other corroborative evidence of removal of inputs cannot be the evidence for the quantity of inputs to be short or to have been clandestinely rem....
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....ely on the decision of Hon'ble Apex Court in the case of Continental Foundation Joint Venture vs.CCE, Chandigarh-I - 2007 (216) ELT 177, while hearing about decision of Allahabad High Court cited as Continental Cement Co. Vs. Union of India reported as 2014 (309) ELT 411 (Allahabad), has laid down the criteria of investigation to prove the allegation of clandestine sale 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 particulars from the regular transporters. (iv) To find out the realization ....