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TMI Blog2016 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumption, the appellant is manufacturing excess quantity of finished goods which have been removed clandestinely on the basis of Dr. N.K. Batra, Professor of IIT, Kanpur - Held that:- the charge against the appellant has been dropped on the ground that on the basis of report of DR. N.K. Batra, Professor IIT, Kanpur is not acceptable as held by Hon ble Apex Court in the case of R A Casting [2011 (1) TMI 1302 - Supreme Court of India]. Such charge of clandestine manufacture of goods and clandestine removal of the goods has already been held by the ld. Commissioner as not sustainable in the facts of this case. Therefore, demand is also not sustainable as the same has been confirmed on account of clandestine manufacture and clandestine removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved. Therefore, question of imposing penalty does not arise on the appellant. As the appellant is not contesting demand of duty therefore appellant cannot claim refund thereof in consequence of this order. In the result, impugned order qua demand of duty along with interest and imposition of penalty on the main appellant and penalties on co-appellant is set aside. - Decided in favour of appellant - Ex. Appeal Nos. 58773-58776/13, Ex. Appeal Nos. 58892-58895/13 - Final Order No. 70793-70800/2016 - Dated:- 22-8-2016 - Anil Choudhary, Member (Judicial) And Anil G. Shakkarwar, Member (Technical) Shri Rajeev Ranjan, Joint Commr. (A.R.) for the Department/Revenue Shri Rajesh Chibber, Advocate, for the Assessee ORDER Per M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S ingots found during the course of investigation, allegation was made against the appellant on the premise that as these goods were found short, therefore they have been removed clandestinely, therefore duty of ₹ 3,03,523/- was also sought to be appropriated which has been paid by the appellant during the course of investigation. Penalties were also proposed to be imposed on the appellants. During the course of adjudication, it was held that on the basis of electricity consumption demand is not sustainable to allege that goods have been removed by the appellant clandestinely. Therefore, demand of ₹ 2,26,80,122/- was dropped but on the basis of katcha slips found at the residence of Shri Anil Kumar Agarwal for procurement of scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany and the authorized signatory and they also deposited the duty calculated on the same amounting to ₹ 3,35,523/-. Thus, findings of the Revenue are supported with corroborating evidences and as such the demand of ₹ 2.13 Crores is sustainable. The ld.A.R. for the Revenue also prays for increasing the quantum of penalty imposed on the Directors/Authorized Signatory, namely, (i) Mr.Anil Kr.Agarwal (ii) Ms.Sunita Agarwal (iii) Mr.Saurabh Agarwal. The ld.A.R. for the Revenue, also relies on the ruling of the Hon ble Allahabad High Court in the case of M/s Bajrang Petro Chemicals (P) Ltd. Vs. CCEx., Kanpur : 2014-TIOL-2254-HC-ALL-CX and he also relies on the decision of the Tribunal in the case of M/s Nashik Strips Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of Hon ble High Court of Allahabad in the case of Meenakshi Castings [2011 (274) ELT 180 (Allahabad) ] and also submits that in this case no interest has been demanded on finished goods found short in their factory, as charge of clandestine removal stand unproved. The ld. Counsel for the assessee also points out that so far the issue of addition on the ground of Katcha/loose slips and strips are concerned, the same issue has been considered by the Hon ble High Court in CEA No.304/2013 in the present case against the stay order, reported at 2014 (300) ELT 326 wherein, the Hon ble High Court has observed in the show-cause notice that the duty was not demanded on the basis of un-accounted purchase of scraps, demand on that basis coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice although it is discussed that certain katcha slips were found during the course of investigation in the custody of 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, we 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. 7. 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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