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TMI Blog2019 (6) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... s, invoices, raw material consumption etc. to prove the clearances, were not discussed - Even accepting the contention of the learned AR that all issues were kept open, we find that as observed by the Tribunal in the above cited order, no corroborative evidences to prove the clandestine removal alleged in Annexure-D1 to the show cause notice are coming forth. Whether the appellants are liable to pay the duty on the alleged clandestine removal and whether the penalty imposed against a person who is no more abates? - HELD THAT:- As we find that none of the above evidences have been put up in the show-cause notice and discussed in the OIO, we hold that demand as per as Annexure -D1 should go away. Therefore, we set aside the duty demand as per Annexure D1 to the show-cause notice. Demand as per Annexures-D2 and D3 of the show cause notice - HELD THAT:- The appellants have accepted the liability only with a request for extending cum-duty benefit. We find that the request can be accepted. For computation of duty, the matter needs to go back to the original authority. Duty demand as per Annexure-D4 - HELD THAT:- The appellants contended that the goods were very much lying in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to dealers investigating officers have not contacted the dealers and recorded their statements; there is also no proof of purchase of raw material required for the alleged clandestine manufacture and clearance; we do not find any justification to hold that for a part of the period Surendra and Satish should be held as manufacturers; legally the proprietor is Sri K.R. Suraj and the duty liability for the entire period should be on him. Ld. Commissioner, after conducting cross-examination and following principles of natural justice, passed Order-in-Original No.16/2007 dated 26.09.2007 / 23.10.2007 confirming the duty, after allowing cum duty benefit, imposing penalty on the Appellant as well as on late Sri. K.G. Ravindran and dropping penalty on Sri A.K. Suraj 3. Learned Counsel for the appellants submits that confirmation of demand in respect of Annexure- D1 (pocket note book seized from the residences of Basheer Ahmed and Shivaraj) is beyond the scope of the remand order passed by the Tribunal in the first round of litigation; no investigation was carried out in so far as Annexure- D1 is concerned and hence, the findings arrived at by the Ld. Commissioner placing reliance on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, which is clearly beyond the scope of remand order without the authority of law; Ld. Commissioner has totally erred and has over stepped while adjudicating the case in the de novo proceedings; in para 13 of the impugned order wherein the Ld. Commissioner has held that the statement of the proprietor of Shiva Transport Company prove regarding transport of goods etc., are all with reference to the demand raised in respect of annexure D2 and D3 and not with reference to D; the buyer A. Mani has admitted having made an annual transaction of ₹ 10 lakhs only and the transporter, Shiva Transport company has also stated that only 3-4 consignments were being transported per week. Apart from this oral statement there are no other documents / evidences except notings made in the private dairy; the statements of Shiva Transport Company and A Mani accompanied with documentary details as brought out under annexures D2 and D3 has not been countered by the appellant except for the benefit of SSI exemption; the appellants accept the duty liability of ₹ 23,751, after extending the benefit of SSI exemption, for the years 99-2000. 3.3 Learned Counsel for the appellants further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IA and submitted that the D-1 is based on the pocket note books, maintained by Shri P.M. Basheer the then Manager of the Appellant unit and contained the details of goods manufactured, sold and mount due etc; Shri Basheer Ahmed in the statement dated 17.09.2000 had clearly stated that the pocket note books were maintained by him to tack of production, sales and assured commission; in his statement dated 17.11.2000 of Shri K. G. Ravindran, had fully accepted the the statement given by Shri Basheer Ahmed; in the statement dated 17.11.2000, Shri. Suraj, proprietor and son of Shri K. G. Ravindran had clearly confirmed the statement of Shri K. G. Ravindran confirmed the details given by Shri. Basheer Ahmed; various Job Workers had confirmed that they had done job work for the Appellant for which Shri K G Ravindran or Shri Basheer Ahmed used to contact them; Various dealers who received the goods from the Appellant unit confirmed that had received the goods without any invoice and all procurements were received only under chits; Shri A Mani of Kunnathore, confirmed his statement dated 16.04.2001(Para 2 to 11). 4.1. In reply to the averment that the Commissioner has proceeded beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Indore- 2002 (143) ELT 635 (Tri. Del.). (iv) Commissioner of Central Excise, Trichy v. Anjaneya Steel Rolling Mills - 2005 (185) ELT 1589 (Tri. Chennai) (v) Motorol Technologies Ltd. v. Commissioner of Central Excise, Vadodara - 2009 (245) ELT 278 (Tri. Ahmd.) (vi) Beauty Dyers v. Commissioner of Central Excise, Chennai - 2001(136) ELT 339 (Tri. Chennai) (vii) Gopal Industries Ltd. v. Commissioner of Central Excise, Indore - 2007 (7) STR 502 (Tri. LB). (viii) Commissioner of Central Excise, Mumbai v. Kalvert Foods India Pvt Ltd. - 2011 (270) ELT 643 (SC). 5. Having heard rival submissions and having gone through the records of the case, we find that the brief issues involved in the case are to decide whether learned Commissioner has exceeded the brief in relation to the CESTAT's order while continuing proceedings in remand; whether the appellants are liable to pay the duty on the alleged clandestine removal and whether the penalty imposed against a person who is no more abates. 5.1 Coming to the first question, we find that CESTAT vide Final Order No.1213-1216/2006 dated 28.7.2006 has observed in para 5 that "We have gone through the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has reiterated the findings of the OIO and submitted that learned Commissioner has dealt with the evidences in detail in para 13 of OIO dated 26.9.2007. We find that learned Commissioner has given similar findings as in the earlier order based on the statements recorded only. The key issues, raised by the Tribunal, like corroborative evidences in the form of transport documents, purchase of raw materials, invoices, raw material consumption etc. to prove the clearances, were not discussed. Therefore, even accepting the contention of the learned AR that all issues were kept open, we find that as observed by the Tribunal in the above cited order, no corroborative evidences to prove the clandestine removal alleged in Annexure-D1 to the show cause notice are coming forth. We find that Tribunal in the case of Nova Petrochemicals v. CCE, Ahmedabad-II, this Tribunal in its Final Order Nos. A/11207-11219/2013, dated 26-9-2013 has held in (Para 40) as under: "After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well settled that, in cases of clandesti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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