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TMI Blog2019 (4) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of additional raw materials clandestinely. No other corroborative documents have been produced. Investigations against the consignees have also not been done before raising demand on the allegation of clandestine clearance. The onus is definitely on the Department to establish manufacture and clearance of such goods and also the receipt of payments. Demand of duty do not sustain - penalties also cannot sustain - appeal allowed - decided in favor of appellant. - Appeal Nos. E/459-464/2009 - ORDER No. FO/A/75030-75035/2018 - Dated:- 2-1-2019 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Shri Anjan Dasgupta, Advocate for the Appellant (s) Shri H. S. Abedin, A.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Signatory, Commercial Manager Accountant of the appellant company. 2. The Ld. Advocate appearing on behalf of the appellants submitted that the above demand has been raised on the basis of alleged documents and statements of different persons. As regards the statement dated 26.06.2007 of Sri Sudip Chatterjee, an employee of the appellant company, which formed the basis of alleged clandestine removal, the Ld. Advocate submitted that the same was obtained against threat, duress and physical torture, facts which were sworn in an Affidavit before the Notary Public on the very next day i.e. on 27.06.2007, within 24 hours. The above Affidavit was forwarded to the Commissioner of Central Excise, Bolpur. The above fact is also ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd. Vs. Commissioner of Customs (Port) reported in 2017 (383) ELT 421 (Cal). (iii) Bhupinder Steel Pvt. Ltd. Vs. Commissioner, reported in 2018 (360) ELT A 205 (CESTAT-Chandigarh). (iv) Rajasthan Explosive Chemicals Ltd. Vs. Commissioner of Central Excise, Jaipur-I reported in 2017 (357) ELT. 269 (Tri.-Del.). In respect of the allegation of illicit production of Sponge Iron on the basis of electricity consumption, it is submitted that the above allegation is only a presumptive one inasmuch as during the years 2005 and 2006, work for installation of second and third kiln was under process/operation as also installation of ESP (i.e., Pollution Control Device) resulting in huge electricity co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to confirm the demand on the basis of documents seized from third party, etc. The appellant has successfully rebutted these evidences relied upon by the Commissioner. We also find that no investigation has been undertaken by the Revenue towards procurement of additional raw materials clandestinely. No other corroborative documents have been produced. Investigations against the consignees have also not been done before raising demand on the allegation of clandestine clearance. The onus is definitely on the Department to establish manufacture and clearance of such goods and also the receipt of payments. In the absence of such investigation and evidence, we are unable to sustain the demand for duty. Once the demand for duty payable is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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