9911796707
TMI Blog2017 (7) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... some material such as, weighment slip, counting slip etc, as the case may be. It cannot be on the basis of eye estimation or otherwise - The assessee claimed that the said materials were lying at their factory and informed the department subsequently and no enquiry was conducted thereon. That the allegations in the instant case are clandestine removal of the goods and revenue had not disputed the major portion of the demand dropped by the Adjudicating Authority. Appeal dismissed - decided against Revenue. - Ex/643/2006, CO-12/2007 - FO/A/76239/2017 - Dated:- 18-7-2017 - Shri P. K. Choudhary, Judicial Member Shri. A. K. Biswas, Suptd. (AR) for the Appellant Shri B. N. Chattopadhyay, Consultnat Shri R. S. Bajaj, C.A. for the Respondent ORDER Per: Shri P. K. Choudhary The Revenue filed this appeal against the order of the Commissioner Haldia Commissnerate. In the Form No. EA-5, it is mentioned that the amount of duty demanded ₹ 1,17,40,607/-. By letter dated 29.03.2017, the A. C. (T R) Central Excise S. Tax, Haldia Commissnerate informed the Tribunal that the duty involved in the present appeal would be ₹ 45,29,162/- instead of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority is reproduced below:- On careful examination of the case file, I find that this case has been built around the apparent shortages of inputs and finished goods detected in the noticee's factory premises. I notice that although the shortages have been quantified in the stock verification reports and the case for the demand of duty has been made out on its basis, it appears that there is nothing in the SCN or the stock verification reports themselves to show the procedure adopted by the department to arrive at such huge shortages. The noticee, I find, has been consistently disputing the physical verification exercise undertaken by the department and had sought from the department copies of weighment / verification slips prepared by the officers while verifying the stock of the goods in their factory and the mode of such verification. The copies of such slips, if at all taken, do not appear to have been provided to the notice by the department. When a charge as serious as the one raised in the instant SCN is to be considered on merit, the prome ingredient that is necessarily required to be present is the transparent and the concrete mode adoptedby the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so an admitted fact that one bundle of H.B. Wires varies in weight from another bundle by a few kilograms. As such, taking an average of 5 bundles and projecting the average weight for arriving at the total weight of the stock can, at best, give a rough estimation of the stock. That being so, the allegation of clandestine removal of such roughly estimated quantity cannot be sustained without some sort of collaboration with reference to manufacture, clearance and transport and buyers of such clandestinely manufactured items. Here, the shortages have not been admitted by the appellant as can be seen from the statement dated 25-3-2014 of the Director. In the conclusion of the statement, he admitted that his response from questions 1 to 8 is correct. The shortage and the procedure to arrive at the stock weight was specifically mentioned in question No. 9, which it appears has not been admitted specifically by the Director. In Anand Founders Engineers - 2016 (331) E.L.T. 340 (P H) , the Hon ble Punjab Haryana High Court held that mere shortage of finished goods in stock taking is not enough to hold the charge of clandestine removal. In Chandrapur Enterprises Ltd. - 2014 (310) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars within 2 hours and also arriving at the physical stock upto Kg. level without explaining how measurement was made creates serious lacunae and seriously affected the very basis of revenue's allegation. The Tribunal in Raj Ratan Industries Ltd. - 2013 (292) E.L.T. 123 (Tri.-Del.) held that the allegation of clandestine removal in such type of cases are to be established by production of concrete and tangible evidence. In the said case also, the appellant admitted the stock taking and agreed to pay the excise duty. Later, it was found that the stock taking was not done on actual basis. In the case of Commissioner of Central Excise Vs. Omkar Textile Mills Pvt. Ltd. reported in 2010 (259) E.L.T. 687 (Guj.), the Hon ble Gujarat High Court dismissed the revenue's appeal and held as under :- 5. 5. As can be seen from the order made by the adjudicating authority, before the adjudicating authority, the assessee had contended that the shortage of fabrics shown in the panchnama was not correct as they had produced the documents to show that the fabrics in question had not been cleared without payment of duty, but the officers who drew the panchnama did not take int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is admitted need not be proved. The said decision would not have any applicability to the facts of the present case as the assessee has disputed that there was a shortage of raw material or that there was clandestine manufacture or removal. The decision of the Supreme Court in the case of K.I. Pavunny v. Asstt. Collr. (HQ.), C. Ex. Collectorate, Cochin (supra) , also would not be applicable to the facts of the present case. In the said decision the Court held thus : It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
