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TMI Blog2014 (10) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... n the statutory records. They also did not pay the duty/reverse the Modvat Credit for this purpose. In fact, they wanted to take advantage on their own fault by not maintaining the record for captive consumption properly. Their record showed that they had no balance of fabrics after 13.8.1998. Whatever fabrics was manufactured till 13.8.1998, they consumed the same in the manufacture of cement/fertilizers bags, during the period 1.8.1998 to 13.8.1998. Similarly, on 17.08.1998, 5000 fertilizer bags were found in excess of the recorded balance and again on 19.3.1999, excess stock of 3899.8 kgs. fabric, 37,739 cement bags and 1,550 kgs. of wastage were found. This circumstance is enough to adversely reflect on the working of the appellants. Appellant has manufactured and removed the goods without payment of duty as per the details given in the order of authorities below. The circumstances goes long way coupled with other materials are sufficient to prove that there had been unaccounted production and removal of the goods in clandestine manner by the appellant during the period in question without payment of duty. When it is so, then we find no reason to interfere with the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Officers visited the factory premises of the appellant-assessee. After physical checking of stock of finished excisable products namely H.D.P.E./P/P fabrics, H.D.P.E./P.P Cement Bags and H.D.P.E./PP Wastage, the excess stocks of 3899.8 Kg. of fabrics, 37739 cement bags and 1550 Kg. of wastage was detected and seized on the spot for which a demand cum show cause notice was issued to the party separately. The authorities concerned has demanded the excise duty of ₹ 52,25,447/- with the equal amount of penalty for a period of August,1997 to August, 1999 against the appellant's company and imposed the penalty against the other appellants as per the details mentioned in the relevant orders. All the orders were confirmed not only by the first appellate authority but also by the Tribunal. Still being aggrieved, the appellants have filed the present appeals. With this background, Sri Bharatji Agrawal, learned Senior counsel assisted by Sri Piyush Agrawal, learned counsel for the appellants at the strength of written note submitted that the job work was done between 21st April, 1999 to 26th August, 1999, while the period in dispute is August, 1997 to 31st Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. For the purpose, he relied on the ratio laid down in the following cases:- (1) CCE Vs. HMM Ltd., 1995(76) ELT-497 (SC); (2) Pushpam Pharmaceuticals Ltd. Vs. CCE, Bombay 1997 (78) ELT-401(SC); (3) CCE Vs. Malleable Iron Steel Castings, 1998 (100) ELT-8 (SC); and (4) Cosmic Dye Chem, 1995 (785) ELT-721 (SC). According to the learned counsel for the appellant-assessee, the burden lies on the department to prove that the goods were removed in a clandestine manner. No details were furnished pertaining to the transportation of the goods from the factory premises, so, the allegations are imaginary, frivolous and whimsical having no justification in law. If the department cannot be guided by facts and evidence, it cannot jump to conclusions by making assumption and presumptions. No evidence or proof to substantiate the allegation was ever submitted by the department. Lastly, he made a request to set-aside the impugned orders. On the other hand, Sri R.C. Shukla, learned counsel for the department-respondent justified the impugned orders. He submitted that the appellants have been availing the benefit of MODVAT Credit and they never reversed any amount out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of fabric, bags and wastage for a particular period. The total weight of input used must be equal to the weight of finished product manufactured including wastage and that there is no process loss. The most vital evidence in the instant case is the job work done by the party for different customers from time to time. For example, raw material received from 21.4.99 to 26.8.99 is equal to 129430 kgs. and total material dispatched is equal to 129430 kg. It means the total weight of fabric/bags manufactured plus wastage will be equal to the total weight of inputs used for manufacturing. Regarding the weighment of bags, it appears that the department has adopted the best possible method i.e. bale weighment charts which means that the average weighment was done on the actual basis and not with hypothetical basis on purchase order etc. From the record, it also appears that the appellants claimed to have consumed 11,134 kgs. of fabrics for packing purposes but their claim had been rightly not accepted by the adjudicating authority. They never informed about this fact to the department, even no entry in this regard was made by them in the statutory records. They also did not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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