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TMI Blog2018 (1) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities below to consider the same. In that circumstances, the impugned orders have no merit, hence, the same are set aside. Appeal allowed - decided in favor of appellant. - E/51090-51095 of 2017 (SM) - Final Order No. 58454-58459/2017 - Dated:- 19-12-2017 - Shri Ashok Jindal, Member (Judicial) Shri B.K. Singh, Advocate for the Appellant. Shri G.R. Singh, Authorized Representative (DR) for the Respondent. ORDER The appellants are in appeal against the impugned orders wherein demand has been confirmed on account of clandestine removal of goods. As all the appeals arising out of a common order, therefore, all the appeals are dealt with a common order. 2. The brief facts of the case are that an investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in the statutory records at the time of visit of the officer as the person dealing with, was absent and he was not in office from last 7 to 10 days. As the said records could not be maintained up to-date, if the same are taken into account, there will be no variations. He further submitted that in the show cause notice there are calculation errors, the same are not be considered in the order of authorities below. Therefore, the impugned orders deserves no merits. He also submits that the charge against the appellant is that they are involved in manufacturing and clearing goods clandestinely but no evidence to that effect to ascertain the evidence for excess raw material, electricity consumption, transportation, buyers have been brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29-7-2013, when the present case was being argued before us, perhaps, not available to the parties. However, we have, in that decision, applied the law, as laid down in the earlier cases, some of which now have been placed before us. The crux of the decision is that reliance on private/internal records maintained for internal control cannot be the sole basis for demand. There should be corroborative evidence by way of statements of purchasers, distributors or dealers, record of unaccounted raw material purchased or consumed and not merely the recording of confessional statements. A co-ordinate Bench of this Tribunal has, in another decision, reported in the E.L.T. issue of 5-8-2013 (after hearings in the present appeals were concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the learned Counsel of the appellant that in case of plastic industry, there are burning losses and wastages, the same has not been considered by the authorities below. Moreover, the learned Counsel has drew my attention to the show cause notice with regard to calculation error. I have seen that there are certain calculation errors while drafting the show cause notice, but no heed has been given by the authorities below to consider the same. In that circumstances, the impugned orders have no merit, hence, the same are set aside. Further, I find that the demand has been raised against the appellant on the basis of theoretical formula i.e. raw material consumed and how much goods can be produced but no other aspect has been seen by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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