TaxTMI 
TaxTMI 
2021 (9) TMI 26
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....nalty as proposed in the Show Cause Notice dated 02nd June 2017. 2. Briefly stated, the facts of the case are that the appellant is engaged in the manufacture of aerated water and fruit-based beverages classifable under Chapter 22 of the First schedule to 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 3CD return of the final statement filed by the appellant with the Income Tax department and ER 1 return filed by the appellant for the year 2012-13 to 2015-16, there were excess clearance in respect of Aerated Water and Fruit based beverage over and above the ER 1 return and hence it was stated that the appellant h....
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....f the Appellant. He contended that the excise duty demand is not sustainable for the following reasons: (i) demand is based only on the figures reported in the annexure of the tax audit report for the years 2012-13 to 2015-16 without any other substantive allegation; (ii) the ER 1 form provides details of only manufactured goods whereas the 3CD form is based on entire turnover which includes traded goods also. (iii) That the Appellant has already provided detailed reconciliation for the same before the Adjudicating authority which has not been considered at all by the ld. Adjudicating authority (iv) That there is no difference in clearance of manufactured products as per ER 1 and form 3CD of Income tax. (v) the Adjudicating authority h....
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....t and hence, no penalty is imposable. 4. The learned Authorized Representative appearing on behalf of the respondent, reiterated the findings in the order passed by the lower authority. 5. Heard both sides through video conferencing and perused the appeal records. 6. In the instant case, it is seen that the Adjudicating Authority has confirmed the demand of excise duty only on the ground that there are differences in quantity of clearance of goods as per ER 1 and form 3CD as filed by the Appellant, even after accepting that the differences are on account of trading of goods which does not form part of clearance as per ER 1 return of the Appellant in para 5.6 of the Order-in-Original dated November 30, 2017. It is the case of the Revenue ....
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....n for showing higher production in the balance-sheet, the later may be accepted. In our opinion both are pieces of evidence and which deserve acceptance is to be decided on the basis of further material available. There is no material to suggest that the manufacturer had manufactured the quantity as shown in the balance sheet, then what has been shown in RT-12 returns. The Tribunal as also the Commissioner has noted the common feature that manufacturers show inflated figures of its production in the balance-sheet for taking higher loan facilities from the Bank and accepted the plea of the manufacturer. 9. Accordingly, we are of the opinion that the balance sheet prepared by the Chartered Accountant can be ignored on relevant and good ground....
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....t 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 are as below : * Ghodavat Pan Masala Products Ltd. v. CCE - 2004 (175) E.L.T. 182 (Tri.-Mumbai) * CCE v. ....