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TMI Blog2019 (1) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The department has also not investigated the mode of transport of the alleged clandestine removal of the goods from the transporters. It has been held by the various Courts as well as this Tribunal that clandestine removal is a very serious allegation and required to be proved beyond reasonable doubt, which has not been done in this case. Appeal allowed - decided in favor of appellant. - APPEAL NO. E/60416-60417/2017-Ex[DB] - A/63640-63641/2018-EX[DB] - Dated:- 5-12-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Present for the Appellant(s): Mr. Surjeet Bhadu, Adv. Mr. Veer Singh, Adv. Present for the Respondent(s): Mr. G.M. Sharma, A.R. ORDER Per Bijay Kumar : Being aggrieved with the impugned order, the appellants have filed these appeals. Vide the impugned order, the Ld. Commissioner has confirmed a demand of ₹ 4,62,04,200/- along with an equal penalty and the interest under the provisions of Section 11A(4), Section 11AA and Section 11AC(1)(e) of the Central Excise Act, 1944 (hereinafter referred to as the Act ). In the said order, the adjudicating authority has also imposed the penalty of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanic Acid 39426.99 1049.34 4,13,72,318/- 2. Ceftriaxone Sodium Non Sterile 49606.40 3894.35 19,31,84,684/- 3. Dicloxcaillin Sodium 51467.28 1253.21 6,44,99,310/- Total 29,90,56,311/- 3.4 As there was a shortage of the products mentioned above, it was presumed that the above mentioned WIPs converted by the appellant into some unknown final product and the same were cleared without payment of duty to unknown buyers. The value for such goods was also calculated by loading of 20% on the assumed value of such WIPs. There was no other shortage noticed by the visiting officers. 3.5 The visiting officers resumed 13 box files containing sales bill for the year 2012-13, 9 files of Cenvat credit for the period May 2012 to January 2013 and 3 registers of daily stock (RG-1) along with the cost audit report, QPR statement, Bad debts/stock statement, miscellaneous files contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnav Gupta in his statement dt. 07.11.2014 has stated that he was not aware about the shortage of those three items till the time of the visit of the DGCEI officers. On subsequent enquiry from Sh. Yatish Kumar Bansal and Sh. R.K. Singh, he came to know that the three items were available in sterile area. 3.10 On being asked that why the same could not be explained earlier, he stated that Sh. Rakesh Singh, Vice President of Plants manufacturing was undergoing for a heart surgery and was not present in the factory at the time of visit of the officers. Sh. R.K. Singh was responsible for day to day production of the Derabassi, Lalru and Panchkula plants and all the stock related to plant activity including the WIP, SFG was under his direct control. When he joint back after his recovery, a detailed internal investigation was carried out on the shortage of WIP found by the visiting team. 3.11 Sh. Y.K. Bansal wrote a letter dt. 08.08.2013 to the Superintendent, DGCEI, Delhi and intimated the result of internal investigation for short material found during the search on 23.02.2013. It was informed that 6-APA and Dicloxacilin Sodium were shifted to scrap yard for incineration in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption of electricity, labour employed and payment made to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate records, transporters documents, such as L. Rs, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal. In the instant case, no such evidences to the above effect have been brought on record. 3.16 In this case also, no such investigation has been carried by the investigating agency as per the record of the case. Therefore, the demand is not sustainable in view of the above, as per the Ld. Advocate. 3.17 It was also submitted that the appellant is manufacturing the drugs, which is subject to various statutory regulations under Drugs Control Act. No parallel investigation has undertaken to find out as the result the manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of transport of the alleged clandestine removal of the goods from the transporters. It has been held by the various Courts as well as this Tribunal that clandestine removal is a very serious allegation and required to be proved beyond reasonable doubt, which has not been done in this case. 9. We refer and rely upon the cases of M/s R.A. Casting Pvt Ltd (supra) and M/s Arya Fibers Pvt Ltd (supra). In the case of M/s R.A. Casting Pvt Ltd (supra), this Tribunal has held as under: 22. The clandestine manufacture and removal of excisable goods is to be proved by tangible, direct, affirmative and incontrovertible evidences relating to : (i) Receipt of raw material inside the factory premises, and non-accountal thereof in the statutory records; (ii) Utilization of such raw material for clandestine manufacture of finished goods; (iii) Manufacture of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, packing material used, records of security officers, discrepancy in the stock of raw materials and final products; (iv) Clandestine removal of goods with reference to entry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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