TaxTMI 
TaxTMI 
TaxTMI 
2023 (11) TMI 748
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...., 1944 and the Commissioner has also imposed penalty of Rs. 20.00 Lakhs upon Varinder Mehndiratta partner of the firm. 2. Briefly the facts of the case are that the appellant was registered with central excise department and is engaged in manufacturing of 'structural material and boiler parts' classifiable under Chapter 73 & 84 of the Tariff Act. * During the course of audit for the period 2008-09 and 2009-10 conducted on 02.08.2010, it was noticed that the Appellant had shown miscellaneous income of Rs. 1.00 Crore in the ledger account for the period 2009-10 which has not been taken into the account for the purpose of central excise duty. * In furtherance of inquiry, statement of Sh. Varinder Mehandiratta, partner of the Appellant was....
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....he Appellant No. 2. * Hence, the present appeals. 3. Heard both the parties and perused the case records. 4. Shri Naveen Bindal, Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law. He further submitted that the excise duty is payable on manufacture and clearance of goods. The Respondent had not adduced even single evidence to indicate purchase of raw material, manufacture of finished goods and clearance thereof. The Appellant is engaged in the manufacture of 'structural materials and boiler parts' which had been supplied to unit like L&T and BHEL. There is no evidence of movement of goods and statement of buyers to indic....
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....avi Foods Pvt. Ltd. Vs. Commissioner of Ex., Hyderabad 2011(266) E.L.T. 399 5. On the other hand, the Ld. DR defended the impugned order and submitted that the Ld. Commissioner has rightly confirmed the duty demand because admittedly the appellant firm has generated undisclosed profit of Rs.1.00 Crore which obviously would have been the result of the clandestine production and removal of excisable goods. Ld. DR has further submitted that an opportunity was given to the partner of the appellant firm to explain the source of aforesaid income but he failed to give satisfactory explanation. The appellant has even failed to give satisfactory explanation about the source of aforesaid income to the income tax department. He further submitted that....
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....ared production and clandestine removal of excisable goods. Further, we may note that if the Department has raised duty demand, then the onus of proving excess production and clandestine removal of excisable goods is on the Department. 7. We also take note of the fact that the impugned order is prima facie based on assumption and presumption and there is no evidence which may suggest excess production or clandestine removal of excisable goods by the appellant. 8. Further, we find that this Tribunal in the case of Vardhman Chemtech Limited & Ors. Vs. CCE, Chandigarh cited (supra) wherein on identical issue, the Tribunal has held as under:- "6. Heard the parties and considered the submissions. 7. After hearing both the sides, we find th....
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....." 9. Further, we find that in the case of Oscar Remidies Pvt. Ltd. & Ors. Cited (supra), this Tribunal on identical facts relying upon the decision of Vardhman Chemtech Limited & Ors cited (supra) has allowed the appeal of the appellant and set-aside the demand. 10. Further, we find that in the case of CCE, Ludhiana vs. Zoloto Industries cited (supra), this Tribunal has observed as under:- "8. We also find that apart from the decision relied upon by the Commissioner (Appeals), the Tribunal in the case of Ravi Foods Pvt. Ltd. v. C.C.E., Hyderabad - 2011 (266) E.L.T. 399 (Tri.-Bang.) has held that admission by assessee to Income Tax department as regards undisclosed/suppressed sales turnover cannot be held to be on account of clandestine....