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TMI Blog2019 (2) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods. Thus, it was held that the seized currency during the course of investigation could not be confiscated without any evidence that the same was the sale proceeds of excisable goods cleared clandestinely. Consequently, the impugned order passed by the Commissioner was set aside and the appeals were allowed. The appellant-revenue has not been able to point out any error or illegality in the findings recorded by the Tribunal warranting interference by this Court. No substantial question of law arises. Appeal dismissed - decided against appellant. - CEA No. 8 of 2018 (O&M) - - - Dated:- 13-2-2019 - HON BLE MR. JUSTICE AJAY KUMAR MITTAL And HON BLE MRS. JUSTICE MANJARI NEHRU KAUL Mr. Anshuman Chopra, Advocate for the appellant ORDER Ajay Kumar Mittal,J. 1. The delay in refiling the appeals is condoned. 2. This order shall dispose of CEA Nos. 8, 9, 10, 13 and 14 of 2018 as according to the learned counsel for the appellant-revenue, the issue involved in all these appeals is identical. However, the facts are being extracted from CEA No.8 of 2018. 3. CEA No.8 of 2018 has been preferred by the appellant-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other three sister units namely M/s Sada Shiv Steels Mills (SSSM), M/s Sada Shiv Castings Limited (SSCL) and M/s Sada Shiv Ispat Limited (SSIL). The office of Directorate General of Central Excise Intelligence received an intelligence that these units were engaged in clandestine removal of finished goods i.e. alloy steel products without payment of duty through their trading firm in Delhi i.e. Raghav Enterprises, New Delhi which was being run and controlled by its proprietor Suresh Kumar Aggarwal who is brother in law of Kewal Garg. According to the intelligence, all these units used to dispatch the goods on Kacha Parchi to Delhi and on receipt of goods in Delhi, they used to destroy the Kacha Parchi and in this way they were engaged in clandestine removal of finished goods without payment of duty. Consequently, premises of all these units in Derabassi and premises of Raghav Enterprises, New Delhi alongwith residential houses of all the proprietors at Chandigarh and New Delhi were searched on 21.10.2005. It was found that there was shortage of non alloy steel ingots to the tune of 120.720 MT and shortage of cenvatable scrap of 50.140 MT at the premises of SSCL. Shortage of raw mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, raw material was not manufactured goods of the respondent. Further, weighment done on average basis to alleged shortage of finished goods was not sustainable in the absence of any corroborative evidence of clearance of finished goods without payment of duty. No corroborative evidence had been produced by the revenue in support of its claim. Similarly, the demand of duty against M/s SSSM on account of shortage of raw material was also not sustained in the absence of evidence. It was alleged that they were using cenvatable inputs as well as non cenvatable inputs but in the impugned order, the authority had not given credence to the fact that the respondent was using cenvatable as well as non cenvatable inputs which had been found short during the course of investigation. Further, in the case of SSIL, the duty had been demanded on both inputs as well as finished goods. With regard to shortage of inputs, it was not held by the Commissioner that the inputs found short had been used in manufacturing of final product by the respondent. Therefore, the duty could not be demanded on the raw material found short during the course of investigation as the same was not manufactured goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at demand of duty has been confirmed against M/s SSSM on account of shortage of raw material. The contention of the appellant is that they were using cenvatable inputs as well as non cenvatable inputs but in the impugned order the adjudicating authority has not given to credence to the fact that the appellant is using cenvatable as well as non cenvatable inputs which inputs has been found short during the course of investigation. Moreover, duty has been demanded on raw material which are not manufactured goods of the appellant and it has not been held by the adjudicating authority in the impugned order that the input found short has been used in manufacturing of final dutiable product. If that is the case in that case duty is to be demanded on the value of final manufactured goods alleged to be cleared without payment of duty. In the absence of such evidence, duty cannot be demanded on raw material found short in the premises of SSSM. Therefore, the demand of duty against M/s SSSM is not sustainable, the same is set aside. 12. With regard to demand of duty on account of shortage at the premises of SSIL we find that duty has been demanded on both inputs as well as finish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andestine removed goods. Therefore, the impugned order qua confiscation of cash seized is contrary to law which shows that the adjudicating authority has not applied mind for absolute confiscation of currency seized during the course of investigation. Therefore, we hold that the seized currency during the course of investigation cannot be confiscated without any evidence that same is the sale proceeds of excisable goods cleared clandestinely. Therefore, we hold that absolute confiscation of the seized currency of ₹ 47,00,000/- is not sustainable accordingly, the confiscation is set aside and the adjudicating authority is directed to release the said amount immediately to the appellants. 16. As we hold that demands against the appellants are not sustainable, therefore, penalty on all the appellants are not sustainable. In view of the above observations, the impugned order is set aside. Appeals are allowed with consequential relief, if any. 7. Learned counsel for the appellant-revenue has not been able to point out any error or illegality in the findings recorded by the Tribunal warranting interference by this Court. No substantial question of law arises ..... X X X X Extracts X X X X X X X X Extracts X X X X
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