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TMI Blog2016 (10) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... rithla, Tehsil Palwal, Distt. Faridabad (Haryana) under Section 11A of the Central Excise Act, 1944 under the extended period of limitation under proviso to above section 11A of the Act ibid. (ii) I confirm the order recovery of Cenat Credit wrongly availed and utilized by M/s S.H. Haryana Wires Ltd. amounting to Rs. 16,27,231/- from them under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 under the extended period of limitation under proviso to above section 11A of the Act ibid. (iii) I order recovery of interest at appropriate rate under section 11AB of the Central Excise Act, 1944 from M/s S.H. Haryana Wires Ltd. 49/4, Mathura Road, Village Prithla, Tehsil Palwal, Distt, Faridabad (Haryana) on the demand amount of Central Excise Duty so determined at sub para (i) above. (iv) I order recovery of interest at appropriate rate under Rule 14 of the Cenvat Credit Rules, 2004 read with the provisions of Section 11AB of Central Excise Act 1944 from M/s S.H. Haryana Wires Ltd, 49/4, Mathura Road, Village Prithila, Tehsil Palwal, Distt. Faridabad (Haryana) on the demand amount of Cenvat Credit so determined at sub pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of winding wires. On intelligence, a search was conducted in the premises on 12.1.2007. During the course of search certain documents resumed and various statements were recorded although the investigation was going on the information was sought from the appellant with regard to their records and the same supplied in 2009. On the basis of conclusion of investigation, a show cause notice was issued to all the appellants. The duty was demanded from the main appellant of Rs. 93,13,644/- on account of clandestine removal of the goods during the period October,2004 to April, 2009 and the credit was sought to be denied to the tune of Rs. 16,27,231/- with reference to invoices issued by M/s B.S. Trading Co. and M/s Narang Metals and to impose penalties on all the appellants. The show cause notices were adjudicating and proposal made in the show cause notices were confirmed by way of demanding duty on account of clandestine removal to the to tune of Rs. 93,13,644/- and to deny the credit of Rs. 16,27,231/- on account of invoices issued by M/s B.S. Trading Co. and M/s. Narang Metals and equivalent penalty was also imposed on the man appellant and the interest was also dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997.880 was lying in 'Q' Location. It is his submission that the spools with proper sticker are thereafter tested in the quality department. The spools which was the quality test are shown on the software to the finished goods, although physically they are still lying in the production hall. The software clearly shows that actual position of the spools clarifying whether the spools are lying in the production hall or in the godown. The allegation of the department is that while preparing RUD 22, DGCEI deliberately omitted column "location in software" according to which the quantity of 1,52,000/- was lying in the production hall. There is no finding given by the adjudicating authority to that effect in the impugned order. Therefore, the demand on the quantity of 1,52,000 is not sustainable. Further, the appellant during the proceedings have requested for supply of soft copy of the printout of the hard disc but the department has provided only truncated and distorted version of data as RUD 2 but in original form was not supplied to the appellant. He further submits that the appellant has provided to the department stock position of various spools lying upto 4.6.2009 which was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll settled law that following parameters are essentially required to be proved for arriving at a conclusion of alleged clandestine removal: (i) That excess raw material was received (ii) incidence of actual removal of finished goods (iii) identification of the alleged buyers of finished goods (iv) Factum of transportation of raw material as well as finished goods clandestinely (v) Receipt of sale proceeds through cheque or cash. (vi) Use of excess electricity (vii) Statements of buyers with some details of illicit manufacture and clearance of finished goods. (viii) Link between the private/internal records with the actual manufacture of the finished goods. It is submitted that none of the above parameters are fulfilled in the present case in view of the following decisions: (a) Gupta Synthetics Ltd. vs. CCE, Ahmedabad-II-2014 (312) ELT 225 (Tri.Ahd.) (b) Arya Fibres Pvt.Ltd. vs.CCE-2014 (311) ELT 529 (Tri.Ahmd) (c) Suzuki Synthetics Pvt.Ltd. vs. CCE-2015 (318) ELT 487 (Tri. Ahmd) (d) Century Metal Recycling Pvt. Ltd. vs. CCE, Delhi-2016 (333) ELT 483 (Tri. Del.) 7. With regard to the denial of cenvat credit of Rs. 16,27,231/-, it is the submission of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready for despatch but the same were not entered into RG-1 register and not found in stock, therefore, it is correctly held after detail discussion in the impugned order that the goods have been cleared clandestinely and on the contrary the appellant have failed to produce the evidence with the regard to the manufacturing and sale of the goods. It is prayed that the impugned order be upheld. 10. Heard both sides and considered the submissions. 11. On careful consideration of the submissions of both sides, we find that the man appellant has disputed the documents, namely, RUD 22. It is his submission that the said documents has been truncated and distorted. Therefore, it is essential to know the truth of the document RUD 22. The appellant has asked the copy of the hard disc taken by the investigating authority on 12.1.2007 and the copy of pen drive given to the investigating authority on 3.9.2009. Without supplying the copies said documents, truthfulness of the document RUD 22 is doubtful as claimed by the appellant, the document RUD 22 is as under: 12. On perusal of the above, there is significant difference in the said documents and to know the truth, copy of the hard disc take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the invoices or not the statement of the transporter is required but no statement of the transporter has been recorded by the revenue. The allegation of the appellant that the statement of Shri Manjeet Singh obtained under duress is required to be addressed by the adjudicating authority. Therefore, the impugned order lacks merits. 16. In these circumstances, we set aside the impugned order and remand the matter back to the adjudicating authority with the following direction: (a) to supply the copy of the hard disc obtained by DGCEI on 12.1.2007 and copy of pen drive supplied by the appellant on 3.9.2009 to ascertain the truthfulness of RUD 22 (b) to address issue of winding wire on a spool of 1 kg of quantity of 50000 kgs (c) to address the issue of 19,090.01 kg against temporary invoices issued and found in location D (d) to address issue in difference in stock taken on 4.6.2009 as quantity of 33846.57 kg as against 71055.55 kgs. If the RUD 22 found is to be correct as per the appellant verson, in that circumstance, quantity shown in the location Q cannot be termed as removed clandestinely. (e) The adjudicating authority is also directed to address the issue of de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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