9911796707
TMI Blog2018 (6) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... hough, falling within the financial year 2003 04. Therefore, the financial year 2003 04 comprised of two Sugar seasons i.e. 2002 03 (covering April 2003 and May 2003) and 2003 04 (covering December 2003 to March 2004). Hence, the findings of the Learned Commissioner are flawed in so far as he held that the production of Sugar/Molasses took place only during October to March, which was common to both the reporting periods. The burden of establishing clandestine removal is on the revenue and in the instant case the revenue has failed to adduce any positive evidence in support of the charge as entire demand is based on a theoretical calculation and inference drawn out of an incorrect application of the yield ratio -The Fact that Sugar and Mola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty and interest-. The alleged clandestinely manufactured and cleared quantity was worked out by applying the yield/recovery of Molasses and Sugar as reflected in the final manufacturing report prepared by the Appellant for the Sugar Season 2002 - 03 and 2003 - 04 to the cane crushed during the financial years 2002 - 03 and 2003 - 04 as per the Annual Reports of the Appellant and the same was compared with the production reported during these financial years as under: Yield/Recovery as per Final Manufacturing Report Cane Crushed Qty Expected Production Qty Reported Production Qty Alleged Unaccounted Production Qty SS-0304 SS -0203 FY-0304 FY-0203 FY-0304 FY -0203 FY-0304 FY -0203 FY-0304 FY -0203 Molasses 4.58% 8919438 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yield ratio of Sugar and Molasses for any particular Sugar season, to the cane crushed during the financial year, would be grossly incorrect as a financial year may comprise of two Sugar seasons or vice-versa. * The yield of Sugar/Molasses varies on a daily basis on account of the following factors: (a) Weather condition; (b) Category of sugar cane (premium/normal/rejected); (c) Duration between purchase of cane and crushing thereof which in turn affects the average yield for the month and the corresponding sugar season/financial year. Therefore, the yield/recovery cannot be standardized for all months and seasons. * Burden of proving clandestine manufacture and/or removal is upon the revenue and revenue has not adduced any evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... season with the respective statutory authorities under the control orders. The yield for the financial year vis-à-vis the sugar season was also duly reported in the Balance Sheet, which forms the basis of the instant proceedings. Since the Balance sheet is a public document no suppression can be attributed on the part of the Appellant. The ld. Consultant relied upon the following decisions in support of his submissions: i) Autogollon Industries Pvt Ltd. - 2018 (360) ELT 29(All, para - 19) ii) Balashri Metals Pvt. Ltd - 2017 (345) ELT 187 (Jhar, para - 5(v)) iii) Swati Polyster - 2015 (321) ELT 423 (Guj), also affirmed in SC iv) Mittal Pigments - 2018 (360) ELT 157 (Tri- Delhi;Para - 6) v) Shrigonda Sahakari Karkhana ltd - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siderable force in the contentions of the Appellant that the burden of establishing clandestine removal is on the revenue and in the instant case the revenue has failed to adduce any positive evidence in support of the charge as entire demand is based on a theoretical calculation and inference drawn out of an incorrect application of the yield ratio. The Fact that Sugar and Molasses are controlled products and the production/clearance is strictly regulated also cannot be lost sight of. It is unimaginable that surreptitious production and clearance of the quantity confirmed by the Order-in-Original would have gone unnoticed or not invited any proceedings from other regulated authorities. Hence, the revenue fails to discharge the burden of es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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