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TMI Blog2013 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Director of the appellant-company had admitted the same would become unsustainable. The duty demand against the assesse was not sustainable - the order upholding the duty demands against the assesse and also upholding the cenvat credit demand and penalty was not sustainable - there was nothing in the statement of Director of the assesse-company from which it can be inferred that he had admitted the clandestine removal of the goods found short or that he had admitted that the exit vehicles mentioned in the diary had carried finished goods removed without payment of duty. – Decided in favor of assesse. - E/972/2011-SM(BR) - 55716/2013-SM(BR)(PB) - Dated:- 25-2-2013 - Shri Rakesh Kumar, J. Ms. Sukriti Das, Advocate, for the Appellant. Shri S.K. Panda, Joint CDR, for the Respondent. ORDER The appellant are a rolling mill engaged in the manufacture of rolled steel products like M.S. Angles, Channels, Flats, Round Bars, etc. from M.S. Ingots. Their factory was visited by the jurisdictional central excise officers on 10-6-2008. In course of stock taking of the finished products, the officers found shortage to the tune of 3.374 M.T. in the stock of M.S. Flats an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the basis of shortage found in the stock of finished goods and merely on the basis of entries regarding exit of the some vehicle found in the diary found in the factory, the duty demands in question could not be confirmed, as there was no corroborating evidence that the goods found short i.e. 3.374 M.T. of M.S. Flats, 2.562 M.T. of Rounds have been clandestinely cleared and similarly, there is no evidence to show that finished goods have been clandestinely cleared in the vehicles mentioned in the diary as having left the factory on the various dates. Against the above order of the upholding of the duty demands and also the order upholding cenvat credit demand of Rs. 11,014/- and equal penalty, the appellant have filed this appeal. 3. Ms. Sukriti Das, ld. Counsel for the appellant, pleaded that sofar as the cenvat credit of Rs. 11,014/- in respect of the rolls is concerned, the appellant have availed the cenvat credit under the impression that the same are inputs, that even if the same are treated as capital goods, the balance amount of credit would become available in the next financial year and in view of this, there is no justification for confirmation of the cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying upon the Tribunal s decisions in the case of Gulabchand Silk Mills Pvt. Ltd. v. CCE, Hyderabad-II reported in 2005 (184) E.L.T. 263 (Tribunal-Bang.) pleaded that the duty demands have been correctly upheld. As regards the excess cenvat credit of Rs. 11,014/- in respect of rolls, he pleaded that the rolls being capital goods cenvat credit could be availed only to the extent of 50% at the time of receipt and, therefore, demand of excess cenvat credit and imposition of equal amount of penalty has been correctly upheld. He, therefore, pleaded that as such there is no infirmity in the impugned order on the point of confirmation of duty demands in respect of the goods alleged to have been removed clandestinely and confirmation of cenvat credit demand of Rs. 11,014/-. 5. I have carefully considered the submissions from both the sides and perused the records. 6. As regards the excess cenvat credit of Rs. 11,014 in respect of rolls, which are capital goods, the appellant were required to take cenvat credit to the extent of 50% of the total duty, while in this case, the appellant have availed full cenvat credit. However, in any case, the appellant would become eligible for the bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof as such. I have also gone through the Annexure-A submitted by the appellant as prepared on the spot on the basis of Mayur Brand Note Book and find that though it contains in/out vehicle No. (Truck/Tractor/Pickup/Tempo) but has no mention of quantity and description of goods said to have been cleared therein. I also find that for arriving at the quantum of duty evasion, the Department has taken average weight i.e. 10 MT per truck, 2.5 MT per Tractor/Pickup and 1.5 MT per Tempo of finished goods which might have been cleared. Thus, the total quantity of 104.586 M.T of unidentified finished goods said to have been cleared clandestinely has been arrived at by multiplying the average weight per vehicle with total numbers of respective vehicles. Thus the above whole exercise of quantifying clandestine clearance is not supported by any corroborative evidences except the Mayur Brand Note Book. In this connection, it is stated that Hon ble CESTAT in the case of Ambika Chemicals v. CCE, Chennai - 2002 (148) E.L.T. 101 (Tribunal-Chennai) has held that note books maintained by chemist of the firm with regard to production of various leather chemicals not to be relied upon to establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of private book and daily stock account. The relevant para 6 is reproduced below :- 6. We fully agree with the above reasoning of the adjudicating authority. The charges of clandestine removal are required to be proved beyond doubt by production of evidence and cannot be based upon comparison of entries made in the Khatta and the RG-1 register, for which the respondents have adduced sufficient plausible explanation. On the contrary the Revenue has not rebutted the reasoning of the adjudicating authority in their memo of appeal. The reliance by the ld. adv. for the respondents on the Tribunal s decision in the case of T.M. Indus. Birla Tyres is well appropriate. We do not find any reasons to interfere in the impugned order of the Commissioner. Following the judgment of the Tribunals cited supra, I hold that the charge of clandestine removal in the instant case cannot be sustained in absence of corroborative evidence. Moreover burden to prove the clandestine removal of the impugned goods is on the Department which has not been discharged by way of collecting supporting evidence to prove the impugned short found goods were clandestinely cleared. I further find that Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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