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TMI Blog2013 (9) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the basis of payments made to the Contractors, during the relevant period - There was no other corroborative evidences, like, transport documents, purchasers statements, incriminating records showing clandestine production and removals, etc. were brought to our notice by the Department, to establish the removal of finished goods over a period of five years, without payment of duty. - Stay granted. - APPEAL NOs.ST/A/664-665/2010 - ORDER NO.S-268-269/KOL/13 - Dated:- 22-4-2013 - Dr. D.M. Misra and Dr. I.P. Lal, JJ. For the Appellant: SHRI J.P.KHAITAN, SR. ADVOCATE AND SHRI N.SENGUPTA, ADVOCATE For the Respondent: SHRI D.K.ACHARYYA, SPECIAL COUNSEL ORDER Per Dr. D. M. Misra; These Applications have been filed by App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference in the production figures shown against the invoices raised by the Labour Contractor and the production figures shown in the relevant ER-1 submitted to the Department during the entire period. It is his submission that there is no other evidence available on record of clandestine removal of goods and no investigation was carried either with the said Contractors or with any other person; nor any of the employees of the applicant had admitted to the said allegation of removal of goods without payment of duty. On the contrary, it is his contention that the Director of the Applicant in furnishing his statement before the investigating officer on 12.12.2008 has categorically stated that initially, payments to M/s Kamal Singh were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the basis of payments made to the Contractor for undertaking production inside the factory premises. Thus, the difference in the quantity of production shown in the ER-1 Return and that were arrived on the basis of payments made to the Contractor, were undoubtedly cleared without payment of duty. He has further submitted that in such circumstances, the burden lies on the Applicant to establish that the goods manufactured had been cleared on payment of duty. The ld. Special Counsel has further submitted that only on the basis of a prima facie case on merits, the stay application of the Applicants should not be allowed. In this regard he has referred to the judgment of Hon ble Apex Court in the case of Benara Valves Ltd. Vs. CCE 2006 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered payments only against production of TMT bars and not against and other products also, like MS rounds etc.. 5.1. We find that the Director in his statement before the investigating officers had categorically stated that the payments were made to the first contractor Shri Kamal Singh upto 01.11.2005 on the basis of sale of quantity of finished goods and for the subsequent period to Shri Mahabir Singh on the basis of production of finished goods. Also, he has categorically stated that the second contractor Shri Mahabir Singh had been engaged for conversion of raw materials into finished goods viz. TMT bars, MS rounds etc.. Even though these facts were disclosed to the department by the Director in his statement dt.04.12.2008, no f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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