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TMI Blog2019 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... was no investigation regarding receipt of the said quantity which were alleged to be cleared by the appellant - No evidence was brought during the investigation regarding any evidence of receipt of money by the appellant as there was no seizure of cash at all. From the investigation, it is clear that in the present case, no evidence has been gathered by the Revenue. The allegation of clandestine removal of finished goods and the raw material are based purely on the assumption and presumption and surmises and conjecture. No corroborative evidence was adduced by the Revenue in support of alleged clandestine removal of the goods. It is well settled that the charge of clandestine removal is a serious charge and the demand cannot be made on the basis of mere surmises and conjectures and assumption and presumption. Non-accountal of the receipt of raw material or clandestine removal of the goods cannot be on the basis of presumption. Further, in the alleged clearance of 19352.552 of final product is based upon the show cause notice issued of SSSIL alleging the manufacture and clearance of 18501.04 MT of sponge iron to the appellant. We find that the reliance placed on the another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2002 for his involvement in clandestine removal of goods for the shortage noticed during stock taking. 3. The fact of the case is that in pursuance to an information collected and developed by the officers of DGCEI, Kolkata that the appellant No. 1 were evading the Central Excise duty by way of wilful suppression of production and removal of finished excisable goods i.e. MS ingots falling under Chapter 72 of the First schedule to Central Excise Tariff Act, 1985, without proper accountal thereof and without payment of applicable Central Excise duty. Simultaneous searches were conducted on 19.2.2010 at the factory premises of the appellant located at Durgapur, West Bengal and office premises of M/s Shiv Shakti Sponge Ltd., Kolkata. The searches were also conducted on the residential premises of Shri Rajendra Kumar Mishra,, General Manager (Finance) and authorised representative located at Durgapur and office premises of M/s Tirupati Transport Corporation at Howrah. Various records and documents, which appeared to be relevant for the purpose of investigation, were seized under Panchnama prepared at the respective place. On the date of search, i.e. 19.2.2010, the stock of finis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished goods of appellant. The appellant s Advocate submitted that the demand for the clearance and removal has been confirmed for the period May 2008 to Feb. 2010, therefore, reliance on the statement of Shri Tiwari to confirm the demand of clandestine removal of the excisable goods after June 2008 to Feb. 2008 is not maintainable is liable to be set aside on this ground alone. 5.1 The ld. Adjudicating authority in his order has also reproduced the content of the impugned show cause notice but failed to discuss the contentions made in the reply regarding the allegation of duty involvement on unaccounted sale of finished goods without payment of Central Excise duty. The case related to the allegation of manufacture and clearance of MS billet from the factory to the various parties based on the seized File No. 01/Amit/RKMRES/ DUR/10 to quantify the demand. It is alleged that at page 257, which related to the statement of transportation of finished goods from their factory premises by M/s Shivam Transport Agency resumed document at page 305 and 307 are alleged to be the pages containing the statement of despatch of finished goods from their factory made by M/s Tirupati Transport C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporting the goods, the transporter is required to issue the goods transportation receipt and on the basis of this receipt the ledger account is prepared. Revenue has failed to produce the goods transportation receipt to establish their charge of clandestine removal of the goods by the appellant. In the absence of any corroborative evidence, benefit of doubt goes in favour of the appellant. In these circumstances, I hold that Revenue has failed to prove their case. Therefore, demand confirmed against the appellant is not sustainable. Accordingly, the penalties on both the appellants are not imposable. In this case, the allegation of clandestine removal is made against the appellant on the basis of ledger record of transporter. In fact, when the transporter is transporting the goods, he is required to issue the goods transportation receipt on the basis of which the ledger account is prepared. Revenue has failed to produce the goods transport and receipt to establish their charge of clandestine removal of the goods by the appellant. In absence of any corroborative evidence, the benefit of doubt goes in favour of appellant. In the circumstances, I hold that the Revenue has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed is ₹ 2,41,571.00 under Section 11AC of the Central Excise Act. Therefore, the penalty is reduced to ₹ 2,38,647.00 (Rupees two lakhs thirty-eight thousand six hundred and forty-seven). The impugned Order is modified to that extent only. The appeal is otherwise dismissed. 5.6 In the present case therefore, the facts are different from the above cited decision as the shortage in this case was found at the time of visit of Revenue officer and had been admitted by the proprietor of the appellant firm who agree to pay the duty also. The private records were systematically maintained in this case in regard to date wise clearance of the goods, name of the customer, invoice bill number and also amounts received from the customer. The statement made by the proprietor were not also retracted. Therefore, the ratio of the decision relied upon by the appellant is not applicable to the fact of the present case. 6. It was also submitted that in case of M/s MR Tobacco Pvt. Ltd (supra) relied upon by the Revenue, the Hon ble High Court upheld the charge of clandestine removal where loose sheets were systematic and date wise manner. In view of the same discussion, no in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, Transporter and Director of the appellant company. It is seen that the Authorised Representative has accepted the shortage of the goods found in the factory but not the clandestine removal of goods without payment of duty. His statement is thus not conclusive to prove clandestine removal. In the show cause notice as well as in the impugned order, there is no concrete and tangible evidence in support of such a huge quantity of finished goods presume to have been cleared without payment of duty from the appellant factory during the relevant period (May 15, 2008 to Feb, 18, 2010). For receiving such a huge quantity of raw material and for sending out such a huge quantity of finished goods and raw materials, number of transporters are required to be engaged. There is no evidence regarding any movement of goods by trucks or any other means to and from the factory of the appellant. No adequate enquiry or investigation from the transporter was carried out by the department. It is also on record that the department has got the complete address of most of the buyer of the appellant who are well known established concerns. However, there was no investigation regarding receipt of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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