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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 ..... are liable to be set aside? ii) Whether the learned Tribunal has acted illegally and with material irregularity while setting aside the well reasoned order of the adjudicating authority? iii) Whether the Tribunal has passed a non speaking order and has failed to appreciate evidence produced by the parties? iv) Whether the learned Tribunal was justified in dropping the demands raised by the adjudicating authority against the respondents especially when the Tribunal has failed to give any cogent and legal reasons for the same? v) Whether the observations and findings of the learned Tribunal to the effect that the average weighment cannot be taken into consideration wile imposing duty are perverse, and are liable to be set aside? vi) Whether the observations and findings given by the learned Tribunal are based on conjectures or surmises and whether the learned Tribunal has failed to apply its mind and failed to appreciate the complete evidence collected by the investigating agency? vii) Whether the learned Tribunal has acted illegally and with material irregularity while holding that there is no corroborative evidence to prove that the respondent and its sister conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val in order to evade excise duty. Statements of proprietors of the firms as well as other evidence was collected by the Investigating Agency and after giving due opportunity to the respondents, Commissioner vide order dated 5.6.2008 confirmed the duty as well as penalty against all the firms and their proprietors. Aggrieved thereby, six appeals were filed by the respondent units and their proprietors before the Tribunal. Vide order dated 8.8.2016, Annexure P.3, the Tribunal set aside the order passed by the Commissioner. Hence the instant appeals by the appellant-revenue before this Court. 5. We have heard learned counsel for the appellant-revenue. 6. After examining the entire evidence on record, it has been categorically recorded by the Tribunal that demand of duty has been confirmed on account of shortage of raw material/finished goods in the factory premises of all the three manufacturers, on account of clandestine removal of goods by M/s SSCL; absolute confiscation of the currency of Rs. 47 lacs recovered from the residential premises of Sunny Garg and Kewal Garg and for imposition of penalty on all the respondent units. Further, during the course of investigation, except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- "9. On the basis of the records placed before us and arguments advanced by both the sides, we find that in the case of SSCL demand of duty has been confirmed on account of shortage of raw material and finished goods to the tune of Rs. 4,42,243/-. We find that duty has been demanded on shortage of melting scrap of 50.140 MT. We find that the duty has been demanded on shortage of raw material and in the impugned order it is not alleged that this raw material has been used in manufacturing of final product which has been cleared without payment of duty. The demand of duty on shortage of raw material is not sustainable as duty can be demanded only on manufactured goods admittedly raw material is not manufactured goods of the appellant. Therefore, the demand of duty on melting scrap on account of shortages is not sustainable. 10. We have seen that in the impugned order duty has been demanded on shortage of finished goods the sole contention of the appellant is that weighment has been done on the average basis not on actual. The learned adjudicating authority while adjudicating has adopted the method of average weighment by sending the team to inspect and find out the average w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of investigation it was found that as per statutory records the finished goods are of 110.207MT whereas on average weighment it was found that 102.465 MT, therefore, the shortage attributed to 7.742 MT. The details of actual average weighment has not been provided, therefore, benefit of doubt goes in favour of the appellant as weighment has been done on average basis. In that circumstances, the shortage found of finished goods is of meager quantity in the absence of any corroborative evidence of clandestine removal of goods is not sustainable. Therefore, demand of duty against SSIL is also set aside. Demand has been confirmed against SSCL on account of clandestine removal of goods. We find that in this case on the basis of statement of Shri Suresh Agarwal of M/s Raghav Enterprises demand sought to be confirmed against the appellant SSCL that Sada Shiv Group is selling goods to M/s Raghav Enterprises. Xxxxxxxxxxxxxxxxxxxxx 13. Admittedly, nothing has been brought on record with corroborative evidence to allege clandestine removal against the appellant. Therefore, we hold that demand against M/s SSCL on account of clandestine removal of goods is not sustainable whereas the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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