TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 708
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....ed, the facts of the case are that the Appellant is engaged in the manufacture of aerated water and fruit-based beverages classifiable under Chapter 22 of the First schedule of the Central Excise Tariff Act, 1985. During the audit of the records of the appellant by the Central Excise Audit wing of the department, it was noticed that on scrutiny of the return filed by the appellant with the Income Tax department and ER 6 return filed by the appellant for the years 2012-13 and 2014-15 to 2015-16, there was difference in consumption of preform figures as reported in both the above documents and since the Appellant has not accounted for the production of PET bottles from preforms in their daily stock account, it is to be considered that all suc....
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.... not at all been discussed or touched upon by the Ld. Adjudicating authority which proves that there is no clandestine removal done by the Appellant and thus the demand also fails in its entirety. The appellant further contended that the said show cause - cum - demand notice was substantially barred by limitation. Hence, the present appeal before the Tribunal. 3. Shri Ankit Kanodia, learned Advocate, appeared on behalf of the Appellant. He contended that the excise duty demand is not sustainable for the following reasons: (i) demand is based only on the comparison of the figures reported in the annexure of the tax audit report for the years 2012-13 and 2014-15 to 2015-16 and ER 6 for preforms without any other substantive allegation in t....
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....w the actual wastage of preform and PET bottles during various stage of manufacturing depicted by the flowchart and thus concluded that there is no difference in figures of consumption of pre form between 3CD and ER 6 for the period under dispute. 3.3. It is his submission that the demand is also barred by limitation as the demand covers the period from 2012-13 and 2014-15 to 2015-16 whereas the SCN was issued on July 27, 2018 much after the expiry of normal period of limitation. He further submits that the spot memo was issued in August 2014 whereas the SCN was issued in July 2018 and thus the question of invoking extended period of limitation does not arise as the department was fully aware of the facts of the case of the Appellant and h....
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....ess which ranges from 0.40% to 1.60% percentage in different years and the same is within the normal industry average of two percent as per the Appellant's submission. I further find that the lower authority has not at all taken into account the plea of the Appellant as regards wastage of the preform during the manufacturing process whereas the same has been clearly established by the Appellant in its reconciliation provided at all occasions. Hence the order of the adjudicating authority deserves to be set aside to the above extent as the same is based on assumption and without any cogent evidence for 100% conversion of preform in to PET bottles. 8. Further, I find that the Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, AURANGABAD....
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....ificant. It is also to be observed that the Appellants have been declaring such losses of raw material in the manufacturing process in their annual declarations filed in 3CD Forms to the Income Tax authorities during the years earlier to and after to the subject years. No demand of modvat credit involved on such loss of raw material consumption has since been raised by the department in respect of 3CD Form submitted by the Appellants in the years subsequent to the subject years. This point also goes in the Appellants' favour. .................... In view of the above submissions of the Appellant it is conceded that the Appellants could very well substantiate their claims that the alleged shortage of inputs was on account of process loss. He....
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....ether the appellant has clandestinely removed the goods on which the duty demand has been made. We find that in the entire proceedings, no evidence, much less corroborative evidence, has been adduced to show that input goods have been procured to manufacture goods for clandestine clearance. No evidence for extra production or unaccounted cash or statement of buyers or transporters has been obtained. It is a settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing some evidence. The Tribunal has taken consistent view that in absence of corroborative evidence, the charge of clandestine clearance cannot be levelled against the assessee. Some of the decisions ar....