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TMI Blog2019 (1) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... val, in the absence of any corroborative evidence, is well established - There is a plethora of judgments to hold that to stand upon the charges as that of clandestine removal, there has to be some clinching evidence and the demand cannot be confirmed based on presumptions and assumptions - the present case is also the one where the Department has relied upon the 3rd party evidence. As already discussed above, the demand is not sustainable on the said basis. Penalty - Held that:- Appellant herein is merely a consignment agent that too for providing the raw material to the manufacturer i.e. M/s. Ispat India Ltd. The allegations of any clandestine removal of final products by M/s. Ispat India Ltd. are opined to have no bearing upon the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu Steels has been confirmed alongwith the interest and the penalties. Resultantly, the present appeal. 2. I have heard ld. Advocate Mr. Manish Saharan for the appellant and Mr. S.Nunthuk, ld. D.R. for the Department. 3. It is submitted on behalf of appellant that the issue is no more res-integra. It has already been decided as far as the confirmation of demand qua clandestine removal based on third party evidence is concerned. With respect to the demand dropped, it is submitted that Department has not preferred any appeal. Resultantly, the appeal in hand is hereby prayed to be allowed. In support of their contention the following case laws has been placed:- 1. Raipur Forging Pvt. Ltd. vs. CCE, Raipur-I 2016 (335) ELT 297 (Tri. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Casting Pvt. Ltd. - 2009 (237) ELT 674 (Tri-Del.), I upheld the order under challenge to the said extent. 6. With respect to the remaining part of the levy, I find that the case of Revenue is based upon the statement of the representative of M/s. Monu Steels i.e. the third party evidence. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.) as also Tribunal s decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specifically recorded that vide his statement dated 27.04.2010, there has been a denial having any transactions of appellants through M/s. Monu Steels (Proprietor Shri S.K. Pansari). Shri Mahesh Agrawal was made aware of the documentary evidences available in the records of M/s.Monu Steels (Noticee No.2) proving the alleged clandestine removal. But the statement of Mr Mahesh Agrawal has a clear recital that they had never any transaction with or through the said Monu Steel, Raipur and they had never paid any commission to the said trader. In view of the said statement, it is held that the findings of the adjudicating authority below in para 3.6.13 are contrary to the facts on records. Para 5.4 of the show cause notice makes it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [SM] in the case of MAA Banjari Ispat Pvt. Ltd. vs. CCE ST, Raipur. vii. Appeal No. E/50874/2018-EX[SM] in the case of M/s. Ashok Ispat Udyog vs. Comm. Of C.Ex., CGST, Raipur viii. Appeal No.E/50812/2018-EX [SM] in the case of M/s.Vijay Chand Bothra vs. Comm. Of C.Ex., CGST, Raipur. 8. With respect to the impugned remaining penalty of ₹ 50,000/-, it is observed that appellant herein is merely a consignment agent that too for providing the raw material to the manufacturer i.e. M/s. Ispat India Ltd. The allegations of any clandestine removal of final products by M/s. Ispat India Ltd. are opined to have no bearing upon the appellant unless and until there is a corroborative cogent evidence to support the allegation of providin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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