9911796707
TMI Blog2008 (3) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 STV Raghunadha Rao Rs. 1,00,000/- 6. E/779/2006 B. Ramakrishna Reddy Rs. 1,00,000/- 3. The brief facts of the case are as follows : The assessees manufactured ordinary Portland Cement and Clinker which are excisable. In terms of Notification No. 5/99 - Central Excise dated 28-2-1999 as amended, they had availed concessional rate of duty for cement for the clearance of 99,000 MT. The above-mentioned notification is available for mini cement plants based on their installed capacity. The Departmental Officers carried out investigations into the affairs of the assessee's unit. The investigations revealed various irregularities. The irregularities are : (i) In terms of the installed capacity the assessees are not entitled for the benefit of the notification. Hence, they are required to pay full rate of duty. (ii) There is clandestine clearance without payment of duty. (iii) There was irregular availment of Cenvat credit. 4. In view of the above irregularities, Revenue proceeded against the appellants by way of issue of show cause notice dated 3-3-2005. In the course of the investigation, the appellant de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious persons have already been given in the tabular column supra. 6. The assessees as well as Revenue are aggrieved over the impugned order. Even though the demand in the show cause notice was huge, the Commissioner did not confirm the demand in the show cause notice in its entirety. Moreover, he has held that the appellants are entitled for the benefit of notification 5/99-CX available for mini cement plants. He has also not imposed personal penalty on Shri K. S. Rama Rao, M.D of M/s. Torus India Ltd. The assessees are also aggrieved over the impugned order on grounds of incorrect computation of the demand. They have also challenged the demand on account of clandestine clearance. The denial of Cenvat credit is also under challenge. The personal penalties imposed are also contested. We shall deal with the appeals of the assessees and the Revenue separately. 7. Assessees' Appeals : Shri B.N. Gururaj, learned Advocate, appeared on behalf of the assessees and Ms. Sudha Koka, for the Revenue. 8. The learned Advocate made the following submissions : I. Wrong Computation of duty demand : The Adjudicating Authority has held that the appellant is entitled for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Sale of 1578.5 MT cement to M/s. Lavena Marketing Pvt. Ltd. Appellant has contended that this was sold by M/s. Modern Plastic Corpn. and hence, appellant is not liable to pay duty. As per notice, this quantity was 2155 MT. Demand Rs. 5,52,472/-. (ii) 156 MT cement sold to Sri Lakshmi Enterprises. Appellant has contended that 131 tons were sold by Modern Plastic and 25 tons by Sri Chakra Marketing and hence, appellant is not liable to pay duty. Demand Rs. 54,600/-. (iii) 290.5 MT sold to Kamakshi Agencies. Appellant has contended that 117 tons were sold by Modern Plastic through Sri Chakra Marketing and 151 tons were sold by the appellant. Demand Rs. 1,04,125/-. (iv) 6361.5 tons supplied to various assorted parties. Demand Rs. 23,25,850/-. The total demand comes to Rs. 30,37,050/-. It was argued that the brand name "Sri Chakra" is the one used by the assessees. The brand name "Chakra Gold" is used only on cement procured from grinding units. At Para 13.3 of Order-in-Original, the Commissioner acknowledges that Laveena Marketing and Lakshmi Enterprises received "Chakra Gold" brand cement. The above supplies were of cement ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also relates to inputs removed to mines. This recovery is impermissible in view of the Hon'ble Supreme Court's decision in Vikram Cements case, 2006 (194) E.L.T. 3 (S.C.). It was requested that this issue should be remanded for detailed examination of each removal and decision thereon. (iii) A demand of Rs. 50,348/- is on account of the recovery of credit taken on cement returned as hardened and used within the factory for road and repair work. The duty payment particulars were furnished. But, the Original Authority ignores and confirms the recovery of credit of Rs. 50,348/-. (Para 12.2 of Order-in-Original). VI. General defence : The duty demand is based on alleged clandestine removal of over 20,000 tons of cement during the period of dispute. But, there is no unexplained consumption of raw materials, power or undisclosed capacity of the plant. In fact, upholding of exemption claim itself shows that production of cement has been within the capacity of the appellant's plant based on grinding mill. In other words, the appellant had no capacity for manufacturing the quantity alleged to have been removed clandestinely. The entire case is based on discrepancies or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Departmental Representative reiterated the findings of the Commissioner which are not contested by the Revenue. 10. As the Revenue has also filed an appeal against the impugned order, we shall give our findings after narrating the grounds of appeal by the Revenue. The assessee has also filed a cross-objection in this matter. 11. The grounds of appeal of the Revenue are as follows : I. Eligibility of SSI Exemption : The SSI Exemption will not be available to unit if its installed capacity is more than 900 TPD. The Commissioner has given the benefit to the assessee based on the certificate issued by the Commissioner of Industries, Hyderabad. In terms of the said certificate, the installed capacity is only 786 MT/day. Revenue's objection is that the certificate was issued on 19-5-2005. The inspection of the unit was carried out by the Commissioner of Industry on 11-2-2005. According to the Committee which inspect the plant, the installed capacity is 768 MT per day and not 786 MT as stated in the order. In any case, the period of dispute is from February 2000 to 2nd September 2004. Therefore, it appears inappropriate to rely on an inspection, which was done in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve evidence for sustaining the charge. On 29-4-2001 and 30-4-2001 there were a clearance of 120 MT and of 90 MT of clearance through 10 and 9 vehicles respectively as per the freight letters. Totally, a quantity of 660 MT was cleared by the assessee without payment of duty and without accountal. Similarly, verification of lorry placement books recovered from M/s. Sai Ram Transport revealed that they cleared cement without invoice. Shri M. Radha Krishna, Managing Partner of M/s. Sai Ram Transport, in his statement, confirmed that they are issuing freight letters for the placement of lorry with assessee, that almost all the vehicles placed by them will be loaded and rarely cancelled, that the lorry transaction slips are for the transactions of transportation undertaken. Therefore, it appears that there was actual clearance of cement without payment of duty in cases where there were lorry-loading slips without corresponding Central Excise invoices. These facts have been brought out in the Show Cause Notice. The Commissioner has ignored these facts. Therefore he has erred in dropping the demand of Rs. 7,67,200/-. Reliance was placed on the decision of the Supreme Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished accounting practices. All these transactions are sale proceeds of clandestine removals of the goods made by the assessee. The actual consumption of raw materials as well as production of norms as maintained by the assessee in their cost audit reports revealed that the assessee should have produced more cement and clinker, than what has been accounted for and cleared through their official accounts. The show cause notice has brought out evidences to the fact that the assessee has shown production of clinker in their records even on days when the kiln was closed. The respondent has not only admitted this fact in his statement but also admitted that there is variation in actual production and the quantities shown in the records. The show cause notice has brought out incontrovertible evidence to the fact that the assessee has not accounted for vital inputs like Gypsum, packing material etc. The Commissioner has not given his findings on any of the above charges but has merely rejected the demand. The assessee has not brought out any evidence to the satisfaction of the department that the money received by them was actually working capital loan. The Commissioner has merely rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the books of accounts, the value of the supply is equal to Rs. 82,49,363/-. Shri K.S. Rama Rao, M.D. of M/s. Torus India Ltd. was responsible for manipulating the figures in their books of accounts thereby abetting, but no penalty was imposed on Shri K.S. Rama Rao. The Commissioner has erred in not imposing personal penalty on Shri K.S. Rama Rao. 12. Grounds of Cross-Appeal : The assessee has also filed cross-objections under Section 35B(4) of the Central Excise Act, 1944 urging the following points : (i) In Revenue's appeal non-application of mind is writ large. The Revenue in their foremost ground refers to the department seeking to deny the SSI Exemption. Revenue is unaware of the contents of its show cause notice. Neither is the assessee working under any SSI Exemption notification, nor has it ever claimed to be a SSI. In the entire show cause notice there is not even a whisper about the assessee having claimed SSI Exemption, or of the department seeking to deny SSI Exemption. This ground wholly traverses beyond the scope of the show cause notice and hence, is liable to be rejected. (ii) Another ground of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been brought on record and admitted by the department that "Chakra Gold" was the brand name used when the assessee got cement manufactured by other grinding units by selling clinker to them and bought back cement under the brand name "Chakra Gold". Hence, the new ground that the said brand name belongs to Modern Plastic Corporation is without basis in the original proceedings. The assessee states that it is wrong to state that the assessee has not claimed the ownership of the brand name "Chakra Gold". It is merely a case of owning an unregistered brand name. (vii) The ratio of Rukmani Pakkwell case, 2004 (165) E.L.T. 481 (S.C.), has been correctly distinguished inasmuch as that was a case of a SSI clearing goods under the partial brand name of another person. In this case, the assessee had not manufactured under another person's brand name. Instead, the assessee's brand name has been used by others. The assessee submits that they have been using the brand name "Chakra Gold" even before the coming into existence of MPC. It would be absurdity to suggest or argue that the assessee had been using the brand name belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (SCCL and Others). The main charges are that : (a) SCCL are not entitled for the benefit of exemption notification 5/99 dated 28-2-1999 as amended. (b) SCCL have irregularly availed credit on the clinker/cement claimed to have been returned back. (c) SCCL have cleared cement for construction works outside their factory without payment of duty. (d) SCCL have cleared cement as per the details in the ledger accounts as available in the CPU recovered without payment of duty. (e) SCCL have cleared cement in the name of grinding units, viz., M/s. Modern Plastic Corporation, M/s. Prakasam Pulverisers, M/s. Tirumala Pulverisers, M/s. Ganesh Industry etc. without payment of duty. (f) SCCL have cleared cement by misdeclaring the weight without payment of duty (g) SCCL have cleared clinker/cement by non-accountal of production without payment of duty. (h) SCCL have irregularly availed Cenvat credit to the tune of Rs. 10,52,000/- on grinding media without receipt. (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice alleged that the assessee was not entitled for the benefit of the concessional assessment in terms of the notification which is based on installed capacity. The contention of the Revenue is that the installed capacity exceeded 900 TPD or 2,97,000 tones per annum. Another condition in the notification is that the concessional rate is not available to cement bearing a brand name or trade name (whether registered or not) of another person. The first allegation against the assessee is that their installed capacity is more than 900 TPD. The second allegation is that they were using the brand name of another person. The show cause notice stated that SCCL undertook major extension of their plant during the year 1995-1996 by expanding the installed capacity to 950 TPD and the same had been fine tuned to 1200 TPD by 2000. Reliance was placed on the project expansion manual of SCCL prepared by M/s. Procem Engineers India Pvt. Ltd. who undertook the expansion and the statements of Shri V.A. Dubale Managing Partner of Procem and Shri Sainath, Proprietor of M/s. Clair Consultants. The Commissioner considered the reply given by the assessee to the allegations in the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Hyderabad, who is a government body certified the installed capacity as 786 MT per day, it is bound to be accepted. 17. The Commissioner has also referred to Board's clarification dated 8-7-1980 holding that "the installed capacity should not exceed the limit fixed in the notification and actual production of cement can be to an extent of 25% more than the installed capacity." In view of the above, the actual production of 25 TPH on certain days cannot be the basis for deciding the installed capacity. Thus, the Commissioner has concluded that the benefit of the exemption notification to the assessee cannot be denied on the ground that the installed capacity is more than 900 TPD. The Revenue has challenged the finding of the Commissioner. We have already stated the Revenue's grounds of appeal on this point. One of the grounds is that the certificate was issued on 19-5-2005 and same cannot be made applicable for the period in dispute which is February 2000 to 2nd September 2004. This objection of the Revenue can be sustained only if there is any evidence to show that during the relevant period the grinding capacity was more than 900 TPD and later the assessee made changes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL : In the impugned order Paragraphs 11, 11.1, 11.2, 11.3, 11.4 and 11.5 deal with the issue of irregular availment of Cenvat credit on returned clinker/cement. The show cause notice proposed denial of Cenvat credit to the tune of Rs. 3,07,357/- on 1225.03 MT of rejected clinker/cement availed. The rejected materials have come from the following units. (i) Levina Marketing Pvt. Ltd. (LMPL) (ii) Modern Plastic Corporation (iii) SCCL, Chennai (iv) Prakasham Pulvarisers Vallampatte. 20. The show cause notice alleged availment of irregular credit based on certain discrepancies in the documents. All the allegations have been recorded in Para 11 of the impugned order. The assessee's reply for the allegations are recorded in Para 11.1. The main contention of the assessee is that in all these cases, the receipt of the returned materials had been inspected by the Range Superintendent. In other words, credit was taken only after the Range Officer conducted physical verification and certification to the effect that the goods have been received back. Revenue has not accepted the finding of the Commissioner. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents we find that the appellant has submitted that on the cement which was returned and used for internal purposes duty has been paid and the invoice particulars have been submitted which are available in pages 157-158 of the yellow paper book submitted by the appellant. The fact that the appellant had paid Central Excise duty on these goods has been completely ignored by the Commissioner. Hence, confirmation of Rs. 50,348/- is not in order. Hence, we set aside the demand made in Para 12 of the O-I-O. 22. Demands based on CPU : During the investigations, a CPU was recovered by the officers from the premises of M/s. Modern Plastic Corporation. Based on the data retrieved from that CPU, it was alleged that the assessee had clandestinely cleared 2155.5 MT of cement to LMPL without invoice and payment of duty during the period from 10-3-2003 to 20-11-2003. But there are no corresponding Central Excise invoices from SCCL evidencing such supply. Further, the CPU revealed that the assessee supplied 156 MT of cement to M/s. Sri Lakshmi Enterprises. It was also alleged that SCCL supplied 268.5 MT of cement to M/s. Kamakshi Agencies. There was also allegation of supply of 6361. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Modern Plastic Corporation. The Commissioner has dealt with this issue in Paragraphs 13, 13.1, 13.2, 13.3, 13.4, 13.5, 13.6, 13.7 and 13.8 in the impugned order. He has recorded that Shri Ch. Sankara Rao, DGM of SCCL (the assessee) had certified that the data contained in the CPU pertinent to SCCL. Mr N. Krishna Mohan, Chairman of SCCL admitted that the CPU was used for recording day-to-day transmission. Moreover, the printouts were taken from the same CPU in the presence of personnel of MPC under Panchanama. The investigation has found out acknowledgement slips containing receipt of cement by buyers indicating that sale of cement shown in the major account has taken place and money was received by the assessee. Shri Govind Prasad Chitlangya, Director of M/s. LMPL in his statement dated 2-12-2004 categorically stated that they had only dealt with the assessee (SCCL) and that too with their brand "Shri Chakra Gold" and they did not deal with another unit with regard to cement. Thus there is corroboration of the details contained in the major account recovered from CPU as explained by Shri M. Venkateswarulu. Further, corroboration is from C.H. Shankar Rao, DGM of the assessee who s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of 6361.5 MT to different parties, demand has been made. This demand is also based on the data recovered from CPU. The Commissioner has recorded a finding in Para 13.8, the parties concerned had stated that they had only dealt with SCCL, the assessee and they had only purchased Shri Chakra Gold Brand Cement. Therefore, he has not accepted the assessee's contention that the goods were cleared by grinding units. In view of the above the Commissioner has confirmed a demand of Rs. 31,15,975/-. 26. On a careful consideration of the confirmation of duty on the basis of the data gathered from CPU seized from the business premises of Modern Plastics, we feel that it is necessary to examine whether the evidence thus gathered is admissible in terms of Section 36(B) of Central Excise Act, 1944. The relevant portions of Section 36(B) are reproduced below : "[S. 36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. - (1) Notwithstanding anything contained in any other law for the time being in force, - (a) a micro film of a document or the reproduction of image or images embodied in such mic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any activities regularly carried on over that period by the person having lawful control over the use of the computer. It is on record that the CPU was given to MPC in September 2004. Therefore, it is clear that the computer was not in the regular use of the appellant. The Commissioner has not examined these aspects. There was also a submission that the computer was used by the appellant's trainee for data entry practice and could contain information, which is not on company's official record. It is also been urged that the print out was taken in the presence of representative of Modern Plastic and not in the presence of appellant's representative against whom the data has been used. There is also no investigation to find out whether the said data were forming part of the regular books of accounts maintained by the appellant and already found placed in these books. With regard to the confirmation of duty on 1578.5 MT of cement, the appellant has given the details of supplies made during the period between 10-3-2003 and 20-11-2003 at pages 374 and 378 of the yellow paper book. This evidence has not been discussed. In Para 13.7 of the O-I-O, the Commissioner has not considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Prakasam Pulverisers (b) M/s. Kiranmayi Cements (c) M/s. Ganesh Industires (d) M/s. Surya Industries (e) M/s. Tirumala Pulverisers (f) M/s. Modern Plastic Corporation 29. Then the following dealers deal with the products manufactured either by the appellant or by the above-mentioned grinding units. (a) M/s. Laveena Marketing (b) M/s. Sri Chakra Marketing (c) M/s. Sri Lakshmi Enterprises (d) M/s. Kamakshi Agencies (e) Various other parties 30. The assessee pays excise duty on the clinker and cement manufactured by them. Whenever clinker is supplied to the grinding units, they owe money to the appellant. The cement manufactured by the grinding units is marketed through the above-mentioned marketing companies. When the grinding units owe money to the assessee, the cement produced by them is sold through the marketing companies in the name of the assessee and amount is received by the assessee for adjusting the dues for the clink ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without accountal. This has been observed from the records of SCCL recovered from M/s. Kiranmayi Cements, Miryalaguda, M/s. Krishna Priya Cements and M/s. Tirumala Pulverisers, Miryalaguda. Second sets of commercial invoices were recovered from the registered office premises of SCCL. Verification of this document revealed that SCCL cleared unaccounted quantity of 210.5 MT of cement and 12.36 MT of cement without payment of duty. The investigation has found that SCCL were maintaining simultaneously numbered sets of commercial invoices for each clearances made from each Pulvarising units i.e serial no. 1 onwards from each grinding unit. However, the said invoices do not bear any identifying mark to show that the clearance is made from any particular grinding unit. The commercial invoices were raised on the party's name from different Pulverising units and only one of said invoices is accounted in the official ledger from one of the grinding units. The commercial invoices have been raised from their Hyderabad office but kept at grinding units. As the Pulverising units have accounted for cement for the clinker received by them from SCCL, the clearances on the parallel sets were in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee supplied clinker to grinding units and purchased cement from them. The cement purchased from the grinding units is sold by the assessee. These are known as second sales. The contention of the Revenue is that the so called second sale relate to the cement actually manufactured by the appellant and cleared by them without payment of duty. The appellants have urged that they are not liable to Excise duty in respect of the so-called second sale because the said cement has not been manufactured by them. They have urged that they are not required to account for the sale of cement dispatched from the pulverizing units in their excise records. It was stated that merely because they had raised commercial invoice for second sale of cement manufactured by the pulverizing unit, one cannot come to a conclusion that they had manufactured cement and had cleared the same in the guise of second sale. They have denied that they had used same invoice number for different grinding units. As far as the grinding units are concerned for second sales, a separate set of invoice was maintained by their Hyderabad office. The assessee's contention that the transactions relating to the second sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment has been able to establish their case for demand of duty. The assessee has urged that the supplies to L&T and RPG Transmission was also a second sale by the appellant. The goods had been procured from Ganesh Industries and sold to the said parties. It was stated that the Commissioner ignored the reply to the notice that order had been placed on the appellant and hence the appellant had raised commercial invoice. There is no evidence to prove that these consignments had been cleared from the appellant's factory. Further, it was stated that the Commissioner has recorded that the cement supplied to L&T and RPG were directly removed from the assessee's factory without even a single instance of actual removal such as particulars of date and time, vehicle number etc. Even the buyers have not been asked to produce documents under which they purchased cement from the assessees. 34. On a very careful consideration, we find that on the basis of certain inconsistencies in the accounts, the Commissioner has come to the conclusion that the second sales represent clandestine clearances from the appellant's factory without payment of duty. In order to establish clandestine clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for proof. The Revenue has not accepted the finding of the Commissioner. In our view, when the shortage itself is based on visual estimate, in the absence of other corroborative evidence to the effect that clandestine clearance has taken place, the demand cannot be confirmed. Commissioner's decision is correct. We uphold the same and reject the Revenue's appeal on this point. 37. Demand based on consumption of inputs and cost audit analysis : The Commissioner has dealt with this issue in Paras 20, 20.1 and 20.2 of the O-I-O. The show cause notice proposed to demand duty of Rs. 1,01,11,241/- alleging clandestine clearances of 28,889.26 MT of cement without payment of duty invoking extended period. The demand is based on consumption of inputs and cost audit analysis. The main allegations are the production figures in the RG 1 Register are not matching with the production figures maintained in any of the other production records. 38. The issue of illicit clearance of cement by SCCL based on consumption of inputs and cost audit analysis is based on the following facts : I. The production figures in RG 1 Register are not matching with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by me, suspicion however grave cannot be substituted for positive proof. Further, applying the ratio of decision in the case of Kesarwani Zarda Bhandar v. CCE - 1998 (101) E.L.T. 181 (Tribunal); Sri Vigneswar Textile Printers - 1999 (111) E.L.T. 316 (Comm. Appeal); and BECO Industries Ltd. v. CCE, Jamshedpur - 2000 (121) E.L.T. 650 (Tribunal), wherein it is held that clandestine clearance has to be proved conclusively and cannot be arrived at theoretically, I hold that department did not establish its case with any evidence, but submitted theoretical calculation for sustaining the demand. This does not establish the case with any degree of certainty. I therefore hold that the demand is not sustainable." 40. In our view the Commissioner has amply justified the dropping of the demand. We do not find any merit in the Revenue's appeal. Without proper evidence merely on the basis of assumptions and presumptions, demand cannot be confirmed. Hence, we uphold the Commissioner's order in Para 20.2 dropping the demand. We reject Revenue's appeal on this point. 41. Denial of Cenvat credit : (a) Non receipt of grinding media from M/s. Torus India : The Commissioner has dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that due to quality dispute, the payment had not been made. On the other hand, booked bill had been neutralised by debiting the party's account. Without seeking supplier's explanation, the department has leapt to the conclusion that there were no supplies and hence, no payment made. The MD of Torus categorically asserted the removal of grinding balls and delivery to the assessee. The assessee also, equally vehemently asserted the receipt of such supply. Both the parties agree that there is dispute about quality and hence, payment was delayed. In between, the department is interfering to say that there was no supply based on mis-reading of appellant's consumption records. On the basis of Torus MD's reply, the penalty proposed on him was dropped. But, for demanding duty the reply of MD was ignored. The Commissioner has ignored the question put by the appellant, as to why the supplier would pay huge sum of duty without actually removing the final product. The Commissioner also erred in not examining the credit on grinding media in the light of the demand raised on the scrapped media, which has been dealt with in the very next paragraph of the order. While he holds that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt does not conclusively prove that all the lorries for which loading slips have been prepared are loaded cleared. As the degree of proof produced is not sufficient enough to establish clearances, the Commissioner dropped the demand. The Revenue has relied on the decision of the Hon'ble Apex Court in the case of Collector of Customs, Madras and others v. D. Bhoormull [1983 (13) E.L.T. 1546 (S.C.)] holding that the prosecution or the department is not required to prove its case with mathematical precision. The department has also referred to Section 106 of the Evidence Act and its application to cases under Section 167(8) of the Act ibid. In our view, the reliance on Bhoormall case is misplaced. That case relates to notified goods for which under the Customs Act, the burden of proof is on the Revenue. In this case, except the statement of Radha Krishna and the Lorry slips no other evidence has been unearthed. Merely on the basis of the booking of the lorries, one cannot come to the conclusion that there has been clandestine clearance. Therefore, Revenue's appeal on this point is rejected. 42. Imposition of penalties : The Commissioner has dealt with the imposition of penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of excess clearance Para 18.1 of O-I-O. VI. We uphold dropping of demand on clinker based on theoretical computation Para 20.2 of O-I-O Rs. 1,01,11,241/-. We reject Revenue's appeal on this point. VII. We uphold the dropping of demand on the basis of clinker stock verification Para 19.2 of O-I-O Rs. 33,22,755/-. We reject Revenue's appeal on this point. VIII. We uphold the dropping of demand in respect of cenvat credit on returned cement Para 11.5 Rs. 3,07,357/-. We reject the Revenue's appeal on this point. IX. We set aside the Commissioner's order demanding credit availed on the returned goods used for roads to mines within the factory premises Para 22.2 Rs. 50,348/-. X. We set aside the demand of credit on grinding media Para 21.2 of O-I-O Rs. 10,52,000/-. XI. We set aside the demand on scrapped grinding media Rs. 5,75,988/-. XII. We reject Revenue's appeal in respect of imposing penalty on Shri K.S. Ram Rao, M.D. of Torus India. XIII We set aside all the penalties imposed on the appellants. 44. All the appeals are disposed of in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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