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TMI Blog2015 (7) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... oods etc. In the present proceedings, there is no indication of excess raw materials procured and extra power used. There is no seizure of clandestinely removed finished goods or seizure of any cash from clandestine transactions involved in such suspected clandestine removals. - on the basis of few confessional statements, diluted by cross-examination of those witness, cannot be made the basis of clandestine manufacture and clearances of excisable goods and accordingly duty demanded by the Revenue is not sustainable. So far as disallowing CENVAT Credit of ₹ 1,10,978.00 and imposition of equivalent penalty upon the main Appellant is concerned, it is observed from the case records that this issue has not been agitated by the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and also wrongly availed CENVAT Credit on 1,740 kgs of Nickel Cathode found short by the Departmental officers. That demand on S.S. articles is based on a diary maintained by Mr.B.D. Patel, Excise Assistant of the main Appellant. It was strongly argued by the learned Advocate that the said diary contained the entries for which orders were received telephonically and these goods are also reflected in the statutory records as per the cross examination of Shri B.D. Patel as per answer to Q.No.13. That as per answer to Q.No.21 of the cross-examination at Para 2.6.2 of the OIO, excise documents are prepared for each dispatch. It was also strongly argued by the learned Advocate that the main Appellant produced a Chartered Engineer s certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Texspin Ltd Vs CCE [2003 (160) ELT 193 (Tri-Mum)] vi) Krishna Co. Vs CCE Jaipur [1998 (97) ELT 74 (Tribunal)] vii) Caress Industries Vs CCE Chennai [2002 (147) ELT 1035] (Tri-Che.)] 2.1 The learned Advocate appearing on behalf of the Appellant also argued that CENVAT Credit of ₹ 1,10,978.00 demanded with respect to shortage of raw material stock is only due to difference in weighing and is negligible and CENVAT Credit recovery of such minor differences is not sustainable. 3. Shri Jitendra Nair, learned Authorised Representative appearing on behalf of the Revenue made the Bench go through Paras 5.6 (viii), 5.9, 5.11 and 5.13 of the OIA dt.28.11.2008 passed by the First Appellate Authority to argue that all the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity manufactured by the main Appellant as per ER-1 return is 656.66 MT for the relevant period and an additional quantity of 570 MT has been alleged to have been clandestinely manufactured and cleared by the main Appellant in the relevant period, which comes to nearly 90% more than the capacity certified by the Chartered Engineer. It is observed that when the CA's certificate was produced by the Appellant then at that time, the factory was in working condition for any verification and contrary study. The said certificate could have been contested by Revenue either for some factual study or by obtaining a contrary opinion by an expert in that field. Without any contrary expert opinion, it is not justified on the part of the lower au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are made in cash. In the present case also, it is observed, from the annexures to the show cause notice dated 1-5-2009 issued to the appellants, that there were huge cash transactions to the tune of ₹ 11.23 Crores. When such large number of transactions involving huge amounts are being undertaken in clandestine removal activities, it is very likely that some cash would have been seized. There is not a single instance where either seizure of cash is made or any clandestinely removed goods are seized or raw materials/finished goods were found either short or in excess in the factory premises of the appellant or at any other place. As per the Panchnama drawn at the factory premises it is shown that there was no excess/shortage of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above order passed by this Bench before the Hon'ble Gujarat High Court in CCE Vs Sakeen Alloys Pvt.Ltd. [2014 (308) ELT 655 (Guj.)], and Hon'ble High Court, inter alia, held as follows in Para 10 and the appeals filed by the Revenue were rejected:- 10. All the appeals are based predominantly and? essentially on factual matrix. The Tribunal elaborately and very correctly dealt with the details furnished by both the sides and rightly not sustained the demand of ₹ 1.85 Crores, which had no evidences to bank upon. Confessional statements solely in absence of any cogent evidences cannot make the foundation for levying the Excise duty on the ground of evasion of tax, much less the retracted statements. To the extent there existe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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