TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1175
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.... engaged in manufacturing and trading of plywood, flush doors and black board. An investigation carried out by DGCI, Jamshedpur on 01.06.2018 wherein search was conducted at the factory and office premises, residence of the Director, residence of Accountant and residence of the sales man of the appellant and some documents were seized from the residential premises of the Accountant of the Appellant. The Accountant in his statement dated 01.06.2018 & 24.08.2018, explained that these documents were maintained by him and contain the detail of income and expenditure for different periods. Entries on the left side pertain to income while the entries on the right side pertain to expenditure and that all the entries are made by placing decimal aft....
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....sioner of Central Excise, Customs & Service Tax, Rourkela : 2022-TIOL- 67-CESTAT-KOL. 3.2 Further, he relied on the decision of this Tribunal in the case of M/s Jai Balaji Industries Limited (Unit III) Vs. Commissioner of CGST & Excise, Bolpur vide Final Order No.75583-75585/2020 dated 12.11.2020. 3.3 He also relied on the decision of this Tribunal in the case of M/s Bharat Alloys Pvt. Limited Vs. Commissioner of CGST & Excise, Ranchi : 2020 TIOL 1339 CESTAT KOL. 3.4 Further, he relied on the decision of this Tribunal in the case of Super Smelters Limited Vs. Commissioner of Customs, Central Excise & Service Tax, Durgapur : 2020 (371) ELT 751 (Tri.-Kolkata). 3.5 He also relied on the decision of this Tribunal in the case of M/s MSP Spon....
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.... Return is Rs.3,85,53,651/-, which is less that the threshold limit of Rs.400 lakhs for availment of SSI exemption. Therefore, the appellant is entitled to avail the exemption for period April, 2017 to June, 2017. 3.10 He further submitted that if the charge of clandestine removal is not sustainable, then his turnover is below within the threshold limit of Rs.400 lakhs for availment of SSI exemption, therefore, it is his submission that the impugned order is to be set aside and the appeal be allowed with consequential relief. 4. On the other hand, the ld.A.R. for the Revenue submitted that the case has been made out on the basis of documents recovered from the residential premises of the Accountant of the appellant, who has stated that ho....
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....e to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate recorts, transporters' documents, such as L.R.s, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal. Whereas, in the instant case, no such clinching or corroborative evidences to the above effect have been brought on record. 15. In the instant case, the entire ....
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....of proving the serious charge of clandestine clearance or undervaluation with cogent and clinching evidence. It has been consistently held that no demand of clandestine manufacture and clearance can be confirmed purely on assumptions and presumptions and the same is required to be proved by the Revenue by direct, affirmative and incontrovertible evidence, as has been held in the following cases :- - Bihar Foundary & Castings Ltd. Vs. CCE, Ranchi [2019 (8) TMI 527 - CESTAT Kolkata] - Para 18 - Continental Cement Company Vs. Union of India [2014 (309) E.L.T. 411 (All)] - Para 12 = 2014-TIOL-1527-HC-ALL-CX - Balashree Metals Pvt.Ltd. Vs. UOI [2017 (345) ELT 187 (Jhar.)] = 2016-TIOL-2590-HC-JHARKHAND-CX - Para 5 vi - CCE, Meerut-I V....
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....ade a fundamental error by making assumptions only just to confirm the demand on the allegation of clandestine clearance. It is a well settled position of law that serious allegation cannot be made merely on assumptions and presumptions and in the absence of detailed supporting evidence, the charge of clandestine removal cannot be upheld. 21. In view of the above discussions, the impugned order cannot be sustained and accordingly the same is set aside. The Appeal is allowed with consequential relief as per law". 8. Admittedly, the Revenue has not come up with evidence of receipt of raw materials used for clandestine manufacture of the finished goods, manufacturing of finished goods with the installed capacity of consumption of electric....