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TMI Blog2016 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... orised Representative For the Petitioner : Shri W. Christian, Advocate ORDER Per: P.K. Das The relevant facts of the case, in brief, are that M/s. Shri Khatu Shyam Industries, the assessee herein, was engaged in the manufacture of M.S. Ingots, classifiable under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. The Central Excise Officers on the basis of certain intelligence visited the business premises of the assesses buyer, namely M/s. Vishnu Steel. It was found that the name of assessee alongwith other manufacturers were mentioned, in their private records and on the basis of the said records, the Central Excise Officers issued summons to the Partner of the assessee. A Show Cause Notice dated 04.09.2009 was issued proposing demand of duty alongwith interest and to impose penalty on the assessee and to impose penalty on the Partner of the assessee. The Adjudicating Authority confirmed the demand of duty of ₹ 20,24,356.00 alongwith interest and also imposed penalty of equal amount of duty on the assessee. It has also imposed penalty on Shri Manish Ramavtar agarwal, partner of the assessee and Shri Shiv Gopal Damini, broker. By the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 (11) TMI 1239-CESTAT AHMEDABAD, in the same investigation allowed the appeal of M/s Shiv Sakti Ingots Pvt. Ltd. (supra). In that case also similar arguments were raised before the Tribunal. The relevant portion in case of M/s. Shiv Sakti Ingots pvt. Ltd. (supra) is reproduced below:- 6. After hearing both the sides and on perusal of the records, I find from the impugned order that the clandestine clearances of the goods of the Appellant Company is based on the documentary evidence seized from the premises of the buyer M/s Vishnu Steel and the statements from Shri S Damani, the broker. The statement of the buyer is corroborative with the records maintained by the buyer in their factory. The Central Excise officers seized a note book from the premises of the buyer maintained by their accountant. They have also seized daily reports from the premises of the buyer. The entire demand of duty was calculated on the basis of the seized records recovered from the premises of the buyer. 7. The Commissioner (Appeals) observed that Appellant No 2, in his statement dtd 14.5.2009 accepted the statement of the buyer and broker. The appellant in their reply to show cause notice dtd 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and removal, Reliance on private records seized from buyers premises not to be the sole basis for demand especially when corroborative evidence like purchase of extra raw material, actual removal of clandestine goods, receipt of sale proceeds, etc. not produced. The Hon ble Delhi High Court in the case of Flevel International Vs CCE vide judgment dtd 17.9.2015 in CEAC 6/2013 approved the decision of the Tribunal in the case of Aarya Fibre Pvt Ltd (supra) as under: 55. Mr. Hari Shanker, learned Senior counsel for the Appellant, has also drawn the attention of the Court to a decision of the CESTAT in Arya Fibres Pvt. Ltd. V. CCE, Ahmedabad-II 2014 (311) ELT 529 (Tri.-Ahmd.) where the entire law concerning clandestine removal has been discussed and the legal position has been summarized as under: i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions ii) Evidence in support thereof should be of: a) raw materials, in excess of that contained as per the statutory records; b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidentiary value to establish clandestine removal. The Learned Advocate relied upon the various case laws as regards the charge of clandestine removal cannot be established merely on the confessional statement of the Director of the appellant company. In the present case, the Director retracted the statement, which was not accepted by the Commissioner (Appeals) as a brain child of the Learned Advocate. 10. The Hon ble Gujarat High Court in the case of CCE,C ST,Daman Vs Nissan Thermoware Pvt Ltd -2011(266)ELT.45 (Guj) in the identical situation dismissed the appeal filed by the Revenue. In that case, the Director admitted the shortage of material used in the manufacture of goods and clandestinely removed without payment of duty. It has been observed that there is no evidence to indicate clandestine manufacture and removal of goods except shortage of raw material and statement of the Director of the Appellant Company and the Tribunal rightly given the benefit to the assessee. In the case of CCE vs Saakeen Alloys Pvt Ltd - 2014(308)ELT.655 (Guj.) the Hon ble Gujarat High Court held that confessional statement cannot form the foundation for levying excise duty. 11. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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