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TMI Blog2018 (2) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata-II [2016 (10) TMI 567 - CESTAT KOLKATA], observed that the clandestine removal of goods is a serious charge and cannot be held on the basis of presumption, assumption and surmises. In that case, the demand was raised on daily performance report of HR strips prepared by quality control incharge of the assessee recovered from its factory. The Tribunal set aside the demand. There is no material available on record of clandestine removal of the shortage material and the imposition of penalty under section 11AC of the Central Excise Act, 1944 is not warranted. Appeal allowed - decided in favor of appellant. - Ex. Appeal Nos.75542/16 & 75562/16 - ORDER NO.FO/A/75139-75140/2018 - Dated:- 5-2-2018 - Shri P. K. Choudhary, Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osited by the appellant company during the investigation. By the impugned order, the Commissioner (Appeals) upheld the adjudiciation order. Hence, the appellants filed these appeals. 4. Heard both sides and perused the appeal records. 5. The ld. Counsel drew the attention of the bench and submitted that the abovementioned private register is nothing but the attendance register of the labourers. The case of the Revenue is that as per the said document number 18, the month-wise production of sponge iron as recorded for the period from January, 2010 to August, 2010 is 26309.55 MT, while the total clearance was 27203.21 MT. But the RG-1 record showed that the total production was 25198.78 MT and clearance was 25918.86 MT during the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the month of March 2010, the document no. 18 showed production as 2890.38 MT. But, at the same time, the RG-1 register showed production as 4070.51 MT. Similarly, in the month of June 2010, document no. 18 recorded production as 2407.44 MT, whereas RG-1 register recorded it as 2622.50 MT. Therefore, there is no parity in the figures reflected in document no. 18 and the RG-1 register. The appellant contended before the lower authority that as per electricity consumption or capacity of machinery, it is not possible to manufacture the said (quantity) goods. The Commissioner(Appeals) observed that in the matter of suppression of production figures in statutory books of accounts, the Department is not required to prove its case with mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvey the daily manufacturing quantity of GSCL. Statement of Shri Pradip Chatterjee dated 7-3-2006 also indicate that this report is not maintained regularly. There is no correlation brought out by the Adjudicating authority that the quantities mentioned in this report are not reflected in the statutory records of Appellant GSCL. Appellant also requested for the cross-examination of Shri Pradip Chatterjee but the same has not been entertained by the Adjudicating authority. It is now a well accepted legal proposition that by virtue of Section 9D of the Central Excise Act, 1944 cross-examination of the relied upon witness has to be extended when the same is sought for by the aggrieved party. If for any reasons the request cannot be entertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (H.P.)] relied upon by the department involved a seizure of 822 cylinders from the godown of International Cylinder Pvt. Ltd. and the concerned persons confessed to the clandestine activity. There were host of other statements indicating clandestine activity. There is no indication in this order of Himachal High Court that cross-examination was denied to the party. In the present proceedings investigation has only suggested to some clandestine activity but there is no positive evidence that any goods were clandestinely cleared. There is no statement to this aspect or a transit seizure of alleged clandestinely cleared goods. The case of RHL Profiles Ltd. v. CCE Kanpur (supra) relied upon by the department was a situation where a cash of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant contended that after considering the month wise production it is not possible to manufacture such quantity of goods which was not examined by the lower authority In such situation, the charge of clandestine removal of goods on the basis of labour attendance register cannot be accepted. 9. Regarding shortage of goods ascertained during the joint stock verification the ld. Counsel for the appellant submitted that there was no shortage. I am unable to accept the contention of the appellant as it was detected during the joint stock verification. In any event, there is no material available on record of clandestine removal of the shortage material and the imposition of penalty under section 11AC of the Central Excise Act, 1944 is not warr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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