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TMI Blog2013 (5) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT Per : Mr. H.K. Thakur; These appeals have been filed by M/s. Gyscoal Alloys Limited (Furnace Division) and Shri Viral M. Shah, Director of M/s. Gyscoal Alloys Limited. 2. The brief facts of the case are that premises of M/s. Gyscoal Alloys Limited was searched on 15.03.2007 during which excess stock of 57.425 MT of TMT/CTD bars was found, which was not reflected in their stock. There was also a shortage of 209.6 MT of raw materials and finished goods. 3. After necessary investigation and issue of show cause notice, the case was decided by the adjudicating authority vide order in original No. AHM-CEX-003-ADC-051-11 dated 25.10.2011, under which a demand of Rs. 8,99,805/- was confirmed on clandestine clearances along with interest payable under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A of Central Excise Act, 1944. Equivalent amount of penalty was also imposed upon M/s. Gyscoal Alloys Limited under Section 11AC of the Central Excise Act, 1944. Penalty of Rs. 50,000/- was also imposed upon Shri Viral M. Shah, Director of M/s. Gyscoal Alloys Limited under Rule 26 of Central Excise Rules,2002. The above order in original was upheld by Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that Commissioner (Appeals) has only relied upon the RTO reports and the admission of the Director and has not fully appreciated the points raised by the appellants before the Commissioner (Appeals). On the other hand, learned AR relied upon the judgments as detailed in Para -6 above to submit that no useful purpose will be served if the matter is remanded back to the appellate authority. It is also seen from the facts narrated in the show cause notice at Para 2.2 that there was shortage of raw materials and finished goods. Therefore, argument of the appellants that the case should be remanded is not acceptable because the Commissioner (Appeals) has taken of the facts into consideration. Accordingly, I take up these appeals for final disposal. 8. So far as denial of cenvat credit is concerned, the appellant have relied upon the judgment in the case of M/s. Adhunik Ferro Alloys Limited and M/s. Hiren Aluminium Limited (supra). The decision of division bench of this Tribunal in the case of M/s. Hiren Aluminium Limited is dated 12.01.2009, which is contrary to the judgment of the Hon ble High Court of P H in the case of Ranjeev Alloys Limited - 2009 (247) ELT 27 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member and vide order No. A/687-700/12/EB/C-II dated 15 Jun/ 10 July 2012, while deciding the case in favour of the department, it was held that the Revenue has established that the transportation used is not capable of carrying the inputs and accordingly, the burden shifts to the assessee to prove that inputs have been received in the factory. Para 3.1 of the show cause notice dated 28.12.2010, containing the statement of Shri Viral M. Shah, Director clearly indicates that inputs received were not used in the manufacturing of final products. On being pointed out, cenvat credit was reversed by the appellant. When the appellants are availing cenvat credit, they are also expected to be aware of the procedure that the credit is required to be reversed when inputs are cleared as such. No such incidence has been relied upon by the appellant for the earlier period also to the effect that the credit taken in such a situation was ever reversed by them voluntarily, without detecting by the department. The action and argument of reversal of cenvat credit by the appellants has to be considered an afterthought. Judgment of Hon ble High Court of P H in the case of Ranjeev Alloys Limited (Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, LJ said "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others." (Hornal V. Neuberger P. Ltd., 1956 3 All ER 970, 977). 28.6. In the case of Collector of Customs, Madras vs. D. Bhoormull 1983 (13) ELT 1546 (S.C.), the Hon ble Court further held as follows:- It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property, though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 28.7. The concepts of reasonable doubt and pre-ponderence of probability have been lucidly explained by the Hon ble Apex Court in the case of State of Rajasthan vs. Mohan Lal [2009 (237) ELT 435 (S.C.)] as follows: 36. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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