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TMI Blog2016 (3) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Thus, the demand of duty was confirmed on the basis of presumption and assumption, without any evidence. Hence, the demand of duty alongwith interest and penalty on the appellants cannot be sustained. - Decided in favour of assessee - Appeal No.E/1623,1624/2010; Application No.E/MA(EXTN)/13714, 13715/2014 - Order No. A/10009-10010 / 2016 - Dated:- 1-1-2016 - MR. P.K. DAS, MEMBER (JUDICIAL) For the Petitioner : Shri H.D. Dave, Advocate For the Respondent : Shri N. Satwani, A.R. ORDER PER: P.K. DAS The relevant facts of the case, in brief, are that M/s Manav Metal Industries (Appellant No. 1) were engaged in the manufacture of Copper and Brass Rod/Patta Patti/Sheet/Section etc, classifiable under Chapter 74 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2009. None of the statements, the Appellant accepted the clandestine removal of the goods. It is further submitted that the entire demand was raised on the basis of alleged shortage of raw material by theoretical calculation, which was converted with manufacture of goods and clandestinely removed. There is no material available of manufacture and clearance of the goods. It is also submitted that the Appellant had furnished the consumption of gas, which was not considered by the authorities. He relied upon the decision of Hon ble Gujarat High Court in the case of Commissioner,Customs, Service Tax, Daman Vs Nissan Thermoware P. Ltd - 2011 266 ELT 45 (Guj.) He further submits that the mere statement of the Director cannot be the basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Officers took a round of the factory premises alongwith appellant No. 2 and panch witnesses and observed that production was going on in the Melting furnance, Extruction Press, Draw Bench, Cutter, Straightening Machine etc., installed in their factory. It has found the records were lying incomplete. After examining the records, the Central Excise Officers found that the total quantity of the raw-materials of 33740.430 kgs., should have been in balance as on 15.09.2008. The Central Excise Officers recorded the statement of the appellant No. 2 on 13.05.2009 and 18.09.2009. It has been stated that whatever scrap was purchased, the same had been utilized in the process. It is also stated that there is no fix ratio regarding utilization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther note that my learned brother has also recorded that in absence of any specific evidence to support the clandestine removal of the quantity, it is necessary that the details given by the appellant subsequently are considered and commented upon. While agreeing with my learned brother that there is no specific evidence to uphold the finding of clandestine removal, the remand of the matter for re-calculation of shortages would be only a theoretical exercise. It is settled law that such calculation of shortages arrived at on the basis of input-output calculation, cannot be made the basis of clandestine removal. The appellants have also challenged that the statement of the authorized signatory as also by the partner do not stand corroborated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged on the basis of conjectures and assumptions. I fully agree with the findings arrived at by the Commissioner (Appeals) that the effect of shortages by itself cannot lead to the findings of clandestine removal, especially when such act does not stand accepted by the assessee. The statement of the respondent s authorised representative, has nowhere accepted that such shortages are on account of clandestine removal. 7. In the case of Vikram Cement (P) Limited vs. Commissioner of Central Excise, Kanpur 2012 (286) E.L.T. 615 (Tri.-Del.) allowed the appeal filed by the appellant. It has held as under:- 13. Plethora of judgments have held that is for the it revenue to establish the case of clandestine removal by production of concrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured out of the said raw material alleged to be found short. As such this is not a case of removal of the inputs from the factory but as a mere case of technical error of not making entry for issuance of inputs in the statutory records. As such there in no justification for confirmation of demand of duty. 9. In the present case, the Revenue proceeded on the basis of theoretical calculation of the input-output ratio and alleged the clandestine removal of the goods. The appellant particularly furnished the documents of gas consumption. No attempt was made to verify the physical stocks and the said documents. On perusal of the impugned order, it is seen that the adjudicating authority observed that he has found enough reason to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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