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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 ..... ng details regarding the entry and exit of the vehicles. In respect of the entries regarding the exit of the vehicles, the departmental officers were of the view that each of these vehicles was carrying finished products and since there were no invoices issued showing the clearances of the goods loaded in those vehicles, on those dates, the goods loaded in these vehicles have been cleared clandestinely without payment of duty. On the basis of average quantity of the vehicles assumed to have been cleared in each vehicle, the department prepared a chart alleging the clearance of 104.566 M.T. of finished goods without payment of duty amounting to Rs. 4,28,451/-. Shri Suresh Agarwal, Director of the appellant-company, on being asked signed the chart and agreed to pay the duty which was paid on that day. Besides this it was also found that appellant have availed excess cenvat credit of Rs. 11,014/- in respect of rolls for the rolling mills as though the same are capital goods and cenvat credit could be taken at the time of receipt only to the extent of 50% of the duty involved, balance amount of cenvat credit could be taken in the next financial year. The appellant took full cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finding of CCE (Appeals) has not been challenged by the Department and in view of this, the part of the order upholding the duty demands also become unsustainable. She also pleaded that in any case the duty demand in respect of 104.566 M.T. of finished products is not sustainable as the diary recovered from the appellant's factory contained only the vehicle numbers which had left the factory and there is no statement of any person stating that these vehicles were carrying finished products and as such, it cannot be assumed that these vehicles were carrying the finished products. She also pleaded that even the quantity alleged to have been cleared in these vehicles have been taken on presumption basis and as such, this duty demand, in any case is unsustainable. She also relied upon the decision of the Punjab & Haryana High Court in the case of CCE, Chandigarh v. Laxmi Engineering Works reported in 2010 (254) E.L.T. 205 (P & H) and the Tribunal's decision in the case of Vikram Cement (P) Ltd. v. CCE, Kanpur reported in 2012 (286) E.L.T. 615 (Tribunal-Delhi). 4. Shri S.K. Panda, learned Joint CDR, defended the CCE (Appeals)'s order confirming the duty demands on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flats and 2.562 M.T. of M.S Rounds, alleged to have been found short and duty demand of Rs. 4,28,251/- at 10.566 M.T. of finished goods alleged to have been cleared clandestinely, I Find that the findings of the Commissioner (Appeals) on this point are contradictory. At one place in para 14, the Commissioner (Appeals) on this point has given the following finding :- "In the instant case, shortage of 3.374 M.T. of M.S. Flats, 2.562 M.T. of M.S. rounds and 104.566 M.T. of finished goods is a fact which has also been admitted by the Director of the appellant-company in his statement tendered under Section 14 of the Central Excise Act, 1944. It is legal maxim that an admitted fact need not be proved again. Thus, appellant has cleared 3.374 M.T. of M.S. Flats, 2.562 of M.S. Rounds and 104.566 M.T. of finished goods found short without payment of duty amounting to Rs. 4,58,181/- which has rightly been demanded/deposited appropriated and I thus uphold the impugned order to this extent". 7.1 Having given the above finding, in the latter part of the same para, the Commissioner (Appeals) while setting aside the penalty of equal amount imposed on the appellant under Section 11AC has recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in quantity for several days and there was no entry in the private note book. This aspect cannot be overruled and the Commissioner cannot proceed on the basis of average figures of the entire note book to arrive at the conclusion that there was production of various chemicals. For production of various chemicals, appellants are required to purchase inputs and use electricity and labour. No such evidence has been proved by Revenue to discharge their burden. There is no evidence collected to show the persons to whom the goods were sold. Mere reliance on a tainted book in which the entries are also incomplete and also in view of clearances noted in R.G.I. were more than what is entered in the note book, therefore we have to hold that the private note book cannot be accepted as a complete and reliable document for confirming the huge demands on all the appellants." The Hon'ble CESTAT in the case of Gurpreet Ind. v. CCE - 1996 (82) E.L.T. 347 (CEGAT) has held that a demand cannot be sustained only on the basis of private diary without considering production capacity, raw material purchased, labour employed, power consumed etc. The relevant para 9 is reproduced below :- "9. In the ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there is no corroborative evidence that short found 3.374 M.T. of MS Flats, 2.562 MT of MS Rounds and 104.566 MT of finished goods were clandestinely cleared nor it has been so admitted by the appellant, the imposition of penalty under Section 11AC of Central Excise Act, 1944 is not sustainable. Therefore, following the above said orders of the higher appellate authority, I set aside the impugned order imposing penalty amounting to Rs. 4,58,191/- under Section 11AC of Central Excise Act, 1944." 7.2 Thus, from the perusal of the Commissioner (Appeals)'s finding, it is seen that in one para after upholding the duty demand, mainly on the ground that the Director had admitted the shortage and paid the duty in the very next para, the commissioner (Appeals) has given the finding that the charge of clandestine removal is not proved as there is no corroborative evidence. Once the Commissioner (Appeals) gives this finding, his earlier finding of upholding the demand merely because the Director of the appellant-company had admitted the same would become unsustainable. Moreover, I also find that there is nothing in the statement of Shri Suresh Agrawal, Director of the appellant-company fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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