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TMI Blog2019 (4) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the various other supporting evidence as clandestine manufacture thereof and sale thereof. No such investigation has been conducted by the investigating officer. In absence of such detailed investigation demand is not sustainable. Appeal allowed - decided in favor of appellant. - Appeal No. E/319 & 320/2008-DB - Final Order No.FO/A/75007-75008/2019 - Dated:- 2-1-2019 - Mr. P.K. Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri R. Santhanam, Advocate - for the appellant Shri H.S. Abedin, AR - for the respondent ORDER Per Bijay Kumar The present appeal is filed against the Order-in-Original No. 04/Denovo/Commr./208 dated 31.3.2008 passed by the ld. Commissioner of Central Excise Service Tax, Panta. This is second round of litigation before this Hon ble Tribunal. In the previous proceeding, the ld. CESTAT has directed the adjudicating authority to pass appropriate order. The remand order is reproduced as under: 1.5 in the aforesaid Order No. S-102-107 A-165- 170/Kol/2004 dated 17.2.04 in the matter of M/s Camco Steels Pvt. Ltd. Others, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the adjudicating authority. He directed the jurisdictional Central Excise Office of Danapur to verify all the transactions relating to trading activities of the appellant pursuant to letter dated 12.10.2006. The Supdt., Danapur in various correspondent with the applicant asked them to furnish purchase order and other related documents evidencing the trading of goods. The appellant submitted that most of the orders were being received orally or over telephonic conversation. The Supdt. asked for the various ledger and other documents such as RG 23 Part 1 II which were made available to him. In addition to above, the Supdt., who was asked to verify the details about trading activity and kept on asking the various documents which was not necessary for the disposal of the adjudication order. Even then the appellant produced whatever documents was available with them. It is the contention of the appellant that verification was to be conducted as per the ld. Adjudicating authority s direction, and also CESTAT directive, the Supdt. wanted to re-investigate the case and proceed on altogether erroneous basis which was not directed either by the Commissioner or by the Hon ble Tribunal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uming the traded goods as input received in the factory and the finished goods manufactured therefrom and removed without payment of duty. According to ld. Advocate, such perverse and imaginary action and orders based on allegations made by the respondent without any evidence whatsoever. It is also submitted by the ld. Adjudicating authority was wrong in confirming the demands of ₹ 1,80,865/- and ₹ 1,12,466/- in respect of alleged shortage/excess of the finished goods and raw material at the time of alleged stock taking on 27.3.2002 which the departmental officers forced the appellant to debit and appellant paid the same under coercion and duress for which there was neither a show cause notice permissible to the issued nor any adjudication to be made in view of the statutory provisions under Section 11A(2B) of the Central Excise Act, 1944. These demands have been confirmed by the Additional Commissioner as adjudicating authority and the same was set aside in appeal. Therefore it was not permissible to include such demand in the impugned order. 5. In view of above the ld. Advocate on behalf of the appellant states that there is no justification on impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) CCE, Delhi Vs. Kuber Tobacco India Ltd. 2016 (338) ELT 113 (Tri.-Del). We also find that the allegation of clandestine manufacture and clearance of the goods is serious charge as required to be substantiated by the corroborative evidence, which has not been done in this case. The clandestine manufacturing and clearance of the goods is required to be proved by the various other supporting evidence as clandestine manufacture thereof and sale thereof. No such investigation has been conducted by the investigating officer. In absence of such detailed investigation demand is not sustainable. We refer and rely the decision of Hon ble High Court of Allahabad in the case of Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.), wherein it has been held as under: 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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