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TMI Blog2014 (5) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided against the assessee. Quantification of duty liability - submission of the appellants that there is duplication of amounts during calculation of the duty demanded in the show cause notice. - Held that:- As the verifications and duty calculations can only be done by the adjudicating authority, therefore the case is required to be remanded to him for necessary re-quantification of duty. Penalties under various provisions of the Central Excise Act, 1944 and Central Excise Rules, 2002 are also required to be proportionately calculated / imposed upon the appellants. For the above limited purpose, the case is remanded to the adjudicating authority to decide the issue in de-novo consideration after affording an opportunity of personal hearing to the appellants. - Decided partly in favour of assessee. - Appeal No.E/185-187/2012-DB - Order No. A/11009 11011/2014 - Dated:- 22-5-2014 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri V.M. Doiphode, Adv. For the Respondent : Dr. Jeetesh Nagori, Addl.Commissioner (AR) JUDGEMENT Per: H.K. Thakur 1. Appeal No.E/185/2013-DB to E/187/2013-DB have been filed by the appellants against commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Original is required to be set aside on this ground alone. Ld.Advocate cited the case of CCE Meerut Vs Parmarth Iron Pvt.Ltd. [2010 (260) ELT 514 (All.)] in this regard. Ld.Advocate also relied upon the judgment of this Bench in the case of M/s Sakeen Alloys Pvt. Ltd Vs CCE Ahmedabad [2013 (296) ELT 392 (Tri-Ahmd)] to convey that there is no clandestine clearance of goods. ii) Alternately, it was the plea of the ld. Advocate that the demand of Rs.1,55,86,616/- [Annexure A(1) to the show cause notice dt.04.01.2011], confirmed by the adjudicating authority as illicit clearances of finished goods, is based on unaccounted raw material purchased as recorded in the diaries 1 2 for the period 20.01.2006 to 28.02.2007. Shri Ranjit Singh Chauhan in his statement dt.30.03.2007 has stated that all the raw materials received by the appellants are weighed and entered in these diaries. Shri Ashok J. Shah, Director has agreed to the statement of Shri Ranjit Singh Chauhan. It was thus argued by the ld.Advocate that the worst case against the appellants can be on the basis of the statement of Shri Ranjit Singh Chauhan, author of the diaries. Since the entries in the diaries pertained to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was his case that diaries 1 2 were indicating only the raw material procured and received by the appellants clandestinely without recording the same anywhere in the statutory records. He made the Bench go through the panchnama dt.30.03.2007 and strongly argued that all non-matching entries in Diaries 1 2 pertain to raw material used for the manufacture of clandestinely removed goods. It was also pointed out by the ld.A.R. that 2,567.00 kgs of raw materials and 3700.390 kgs of finished goods were found short during stock taking, which has been admitted by the appellants. It was also his case that finished goods clandestinely removed, as indicated in Diaries 3 4, were different than the clandestine manufacture and clearances made out of unaccounted raw materials indicated in Diaries 1 2 recovered during search operations. That the entries which were matching in clearance between Annexures A(1) and A(2) to the show cause notice and corresponding duty element of Rs.14,91,354/-[As per Annexure A(3)] have been abetted to arrive at the actual demand of Rs.2,02,31,209/-. That the cross objection of the witnesses was correctly denied to the appellants as per the discussions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises. (ii) Shortage of raw materials in the records of manufacturer. (iii) Excess/shortage of manufactured goods found in the factory premises. (iv) Excess consumption of electricity/power used in the manufacture of finished goods. (v) Any transit seizure of clandestinely removed goods made by the investigating authority. (vi) Any cash amounts seized from the factory premises or dealers premises or residential premises searched during investigation. (vii) Confessionary statements of the persons concerned with the clandestine manufacture/removal of excisable goods. 9. It is observed from the case records that in the present proceedings, there are few confessional statements of the persons which were later retracted by the persons concerned. The confessional statements subsequently retracted can be argued to be an afterthought under a proper legal advice but to observe the principles of natural justice, it becomes necessary to provide cross-examination of such witnesses, as held by various judicial courts including the Hon ble Supreme Court relied upon by the appellants. In the case of CCE v. Omkar Textiles - 2010 (259) E.L.T. 687 (Guj.), it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown in the RG23A Part I register, is also shown in the Diaries 1 2 which should be reduced from the total raw material quantity procured and shown in Diary 1 2. It was also the case of the appellants that quantity shown in Diary 3 4 as clandestine clearance were also manufactured out of the raw material included in Diary 1 2. Similarly, it was argued that duty quantified on the basis of statement of transporter and finished goods found short in the factory premises are also manufactured out of total raw materials indicated in Diaries 1 2. On the other hand, ld.AR was of the view that only unaccounted raw material was used for calculating duty demand as per panchnama and the matching entries in Annexures A(1) and A(2) to the show cause notice were given due abatement while calculating duty demand. It is observed from Page 4 of the Panchnama dt.30.03.2007 that Diaries 1 2 maintained by Shri Ranjit Singh Chauhan contains actual receipt of goods. It was the case of the main appellant that mismatch of entry in Diary 1 2 and RG23A Part I could be due to late receipt of credit taking document and in fact all the raw materials received is entered in Diary 1 2. From th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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