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TMI Blog2017 (11) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant. - Excise Appeal Nos. 52608 -52607/2016 - Final Order Nos. 58037 - 58038/2017 - Dated:- 23-11-2017 - Hon ble Mr. Justice (Dr.) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member (Technical) Sh. R. K. Handoo, Advocate for the appellant Sh. H. C. Saini, AR for the respondent ORDER Per: V. Padmanabhan These two appeals have been filed by the assessee M/s DSR Steels Pvt. Limited as well as Shri R.C. Rana, Director against the order-in-original No. ALW-EXCUS-O-I-O-COM-14/16-17 dated 07.06.2016. 2. The appellant is engaged in the manufacture of various types of steel ingots and rolled products. The main inputs are M. S. Ingots and scrap. The department investigated the intelligence that som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the above background, we heard Sh. R. K. Handoo, ld. Advocate for the appellant as well as Sh. H.C. Saini, ld. AR for the Revenue. 4. Shri Handoo emphasised the following points in the appeal: i) During the course of search on 08.02.2005, at the factory no incriminating documents were recovered and no goods were seized. A small amount of shortage of finished goods was found for which duty involvement is only to the extent of ₹ 30,000/-. ii) He raised the serious objection that the department has failed to supply copies of any of the bills cited in Annexure-B of the show cause notice which form the basis for the entire demand. In fact, the appellant approached the Hon ble High Court through their Writ Petition No. 1063 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived by the appellant but not accounted in their records. The final products manufactured out of such M.S. Ingots would have been cleared clandestinely. He also relied on paragraphs 84, 88 and 89 of the impugned order and submitted that the various persons who have issued invoices (listed in Annexure-B) have also stated that the goods covered by these invoices were delivered to the appellant even though such invoices are issued in favour of somebody else. Accordingly, he argued that the impugned order may be sustained. 7. We have heard both sides and perused appeal record. 8. The entire case of the Revenue is based on the allegation that invoices were issued by M/s Lauls Limited in favour of certain assessees such as M/s JRM Steels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents cited by the department has been given to the appellant to enable them to defend the case. Inspite of the assurances given by Revenue before the Hon ble High Court, the department has failed to give copies of the documents cited in the show cause notice. The adjudicating authority has in fact recorded that the documents listed in Annexure-B are not in the possession of the department since the same were never seized during search proceedings. Under such circumstances, we are of the view that the demands raised on the basis of such relied upon documents not supplied to the assessee cannot be sustained. 10. The allegation of clandestine clearance is a very serious charge. The department is required to support such a charge wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. 11. Further, the Hon ble High Court of Allahabad in the case of Continental Cement Company vs. UoI 2014 (309) ELT 4 (All.) has also observed as under: 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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