9911796707
TMI Blog2015 (1) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, in these circumstances, it cannot be held that goods have been cleared clandestinely. Although the appellants has paid the duty that might be to settle the issue at that stage, but from the records it is not coming out that the charge of clandestine removal has been proved with any supportive evidence except the goods were found short during the course of investigation. In these circumstances, although the appellant is not contesting the duty demand, therefore the same is not issue before me. Further I find that in this case, when the appellant has paid the duty but there is no demand of interest proposed, in these circumstances I hold that charge of clandestine removal stands unapproved. Therefore question of imposing penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rap. It was also observed that power consumption for one MT of MS ingots varies from 990 units to 3703 units per MT. Therefore, a case has been booked against the appellant on account of manufacturing of MS ingots on the basis of consumption of electricity as per the report of Dr. N K Batra, Professor, IIT Kanpur that for manufacture of one MT of MS ingots 1046 units of electricity is required. On the basis of consumption of electricity, the production of appellant was calculated for the period 2005- December, 2007 and demand of duty of ₹ 2,26,80,122/- was sought to be demanded from the appellant. For shortage of 96.93 MT of MS ingots found during the course of investigation, allegation was made against the appellant on the premise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of report of Shri N K Batra, Professor of IIT, Kanpur is not authenticated report and electricity consumption cannot be determined on the formula derived from that report as held by Apex Court in the case of R A Casting [2011 (269) ELT A 108 (SC)]. He further submits that as the major demand sought to be confirmed against the appellant on account of clandestinely removal has been set aside, therefore the allegation of clandestine manufacture and removal is not sustainable and demand of duty of ₹ 13,70,150/- is to be set aside as there is no demand proposed in the show cause notice on account of katcha chits found during the course of investigation for purchase of scrap. He further submits that there is no admission on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of finished goods, same has been cleared clandestinely. Therefore, duty demand of ₹ 13,70,150/- is to be confirmed against the appellant along with interest and penalty. For the demand of ₹ 3,03,523/- he submits that as appellant has himself admitted the shortage of goods and duty paid thereon, therefore, department is not required to prove that these goods were removed clandestinely and penalty is rightly been imposed on the appellant as held by Hon ble High Court of Allahabad in the case of Bajrang Petro Chemicals(P) Ltd. vs. CCE Kanpur [2014-TIOL-2254-HC-ALL-CX]. He further submits that penalties on the co-appellant are also imposable as held by decision of the Tribunal in the case of Nashik Strips Pvt. Ltd. vs. CCE, Nas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Anil Kumar Agarwal, partner, for purchase of scrap on the basis of these slips, no demand of duty is proposed. As there is no duty demand in the show cause notice, therefore, I hold that demand of ₹ 13,70,150/- is not required to be confirmed against the appellant, therefore same is set aside. As demand has been set aside, consequently the demand of interest and imposition of penalty on this count is also set aside. 8. During the course of investigation finished goods were found short and the appellant has paid the duty thereon. Thereafter conclusion was drawn by the department that as they have paid the duty therefore these goods have been removed clandestinely. In this case, there are other charges on the appellants that g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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