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TMI Blog2017 (9) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... see. the said statements cannot be relied upon in the absence of any corroborative evidence. No other corroborative evidence has been produced by the Revenue to allege clandestine clearance of the goods - appeal dismissed - decided against Revenue. - Excise Appeal No.1364 & 1784 of 2011 - A/56402-56403/2017-SM[DB] - Dated:- 1-9-2017 - Shri Ashok Jindal, Member (Judicial) Shri G R Singh, DR, for the Appellant Revenue Shri Bipin Garg, Advocate for the assessee- Respondent ORDER Per: Ashok Jindal Both sides are in appeal against the impugned order. the assessee is manufacturer of PP Medicines and they are maintaining record of raw material, finished goods as per the provisions of Central Excise as well as Drug Control. 2. On intelligence that appellant is clearing goods clandestinely, the Anti-Evasion officers visited the factory premises of the appellant on 20.7.2007 as well as premises of M/s. Natani Medical Hall, M/s. Zymex Pharmaceuticals, M/s. Mangleshwar Pharma and residential premises of assessee. Their stocks was physically counted and it was found that there is shortage of manufactured medicines valued at ₹ 6,29,119/-. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 and 2007-2008, the Revenue is in appeal. Hence, these appeals are before me. 3. Learned Counsel for the appellants submits that the whole demand is confirmed on the basis of one register maintained by Shri R. A Singh, Chemist and it has been observed that clandestine clearance has been admitted by the persons whose statement has been recorded. It is his submission that Shri Sudhir Natani in his statement has submitted that the goods have been removed without payment of duty. This allegation is totally wrong and he has not admitted as such that the clearance without payment of duty but explained in detail giving reasons for clearance without payment of duty. He further explained that there was batch repeat and it reprocessing of rejected / defective goods. It is his submission that certain documents have been relied upon but these documents pertain to the period 2007-2008 whereas the demand for this period has already been dropped by the learned Commissioner (Appeals) and these documents cannot be relied upon for the clearances prior to that period. He also submits that Revenue has relied on the statement of Shri R A Singh, Chemist. The said statement has been mis-interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on record with regard to clandestine clearance. He further submits that the sole statement of the Director /staff cannot establish the guilt of the assessee as burden lies on Revenue and is required to be discharged effectively. To support this contention, he relied on the decision of Davinder Sandhu Impex Ltd. Vs. CCE [2016 (337) ELT 99 (Tri)] He further submitted that appeals filed by the Revenue are liable to be rejected as learned Commissioner (Appeals) has given the benefit of SSI exemption after considering the clandestine clearance of goods. Therefore, the appeal filed by the Revenue is to be dismissed. 5. In view of the above, it is his submission that impugned order qua demand of duty on clandestine clearance of goods and imposition of penalty is to be set aside. 6. On the other hand, learned AR opposed the contention of the learned Counsel and submits that Shri R A Singh, Chemist was looking after the activity of manufacture of medicines. He was maintaining the production record with him and on the basis of production register, the case has been made out as part of the entries were entered in the statutory records. Moreover, during the course of investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the date 24.2.2005, 25,000 paracold, against batch No.424 were produced and in the RG-1, 24,900 (after deducting the wastage) were entered and cleared on payment of duty. Out of these 15000 tablets received back and after reprocessing cleared without payment of duty entered on 25.6.2005. Department has taken quantity of 15000 as suppressed production (b) Against the dated 03.2006, 40,000 Deparferte tablet, against batch No.907 were produced and in the RG-1 39,800 (after deducting the wastage) were entered and cleared on payment of duty. Out of these 10000 tablets received back and after reprocessing cleared without payment of duty entered on 01.01.2007. Department has taken quantity of 10,000 as suppressed production. (c) Against 24.3.2005 verdict syp 200 ml against batch No.448, in column Production as per production register 100+100 Ltr. is written whereas in RG-1 entered 495 and suppressed production is 500. Again, on 4.8.2006 against batch No.448, 100 ltr is written and 500 shown as suppression. Firstly there is a double entry i.e. on 24.3.2005 4.8.2006 and how it is possible that against 100 + 100 Ltr in record shown 495 and 500. These figures has been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of Shri Baldev Singh, Managing Director of the appellant and no other evidence in the form of to manufacture of such huge quantity, the consumption of electricity, additional packing material, payment for purchase of additional packing material, payment received for clandestine removal of goods, how the goods were transported has been brought on record by the Adjudicating Authority or the inspecting team, therefore, relying on the said decision cited hereinabove, we hold that charge of clandestine removal is not sustainable in the absence of any corroborative evidence to the statement of Shri Baldev Singh, Managing Director. 13. No other corroborative evidence has been produced by the Revenue to allege clandestine clearance of the goods. Therefore, the demand against the assessee is not sustainable, as the clearance made as per the statutory records remain within the exemption limit of SSI exemption as per Notification No.8/2003 CE dated 1.3.2003, therefore, I hold that the appellant assessee is entitled to the benefit of SSI exemption. 14. In view of the above observations, charge of clandestine clearance of goods against the assessee is set aside. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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