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TMI Blog2019 (8) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... asons as to why such figures were shown in Page 429 of the Annual Statistics Reports. We find that no other effort has been made by the Department to find as to what has happened to the balance quantity, if at all, there was a discrepancy. No statements were recorded and no proof of any clandestine removal, transportation of the same and financial transaction in that regard are put forth. Understandably, clandestine removal is a serious charge. Without prima-facie, establishing the fact that there has been a clandestine removal (if not with an arithmetical precision), such an allegation, will not survive. It is seen that not even a statement of the person, who managed the production/consumption of oxygen or the person who has maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d steel products, availing exemption contained under Notification No.67/95-CE dated 16.03.1995. They also clear a part of the oxygen manufactured to others on payment of duty. The appellant prepared Annual Statistics Report. On the basis of Annual Statistics Report for the year, 2001-2002, it was seen that they have consumed oxygen of 80660.124 Cu. Mtr. ; whereas in their RT-12 Returns, they have shown consumption of 1,38,780.948 Cu. Mtr.. Revenue contended that the difference in the quantity is clandestinely removed without payment of duty. A show-cause notice dated 15.04.2004 was issued and was adjudicated by the Learned Commissioner of Central Excise, Bolpur vide Order dated 23.02.2006 confirming a duty of ₹ 2,40,66,670/- along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the appellant holding that in the absence of corroborative evidence in the form of documentary evidences like, dispatch details, receipt of materials, transportation details of the goods, sale proceeds, details of additional consumption of electricity etc., adduced by the Department, demand on discrepancy of figures will not stand. Therefore, the charge of clandestine removal, which is a serious charge, cannot be leveled against the appellant. He also submitted that the issue is barred by limitation as the show-cause notice was issued in 2004 on the basis of Annual Statistics Reports for the year 2001-2002 submitted to the Department in 2002 itself. 3. The Learned A.R. for the Department reiterates the findings pf OIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department contends that RT-12 Returns showing the consumption of 1, 38,780.948 Cu Mtr and therefore, the difference of 58120.823 Cu. Mtr. is not utilized for captive consumption, but has been cleared clandestinely without payment of duty. We find that no statements have been recorded and no further investigation has been done. The Learned Commissioner has simply proceeded by brushing aside the submission made by the appellants. We find that the appellants submitted that at Page 429 of the Annual Report, it cannot be seen in isolation and at other pages i. e 369 197 also show the consumption of oxygen gas internally. The Learned Commissioner has not given any reasoning for not considering the statistics reflected in other pages and has co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, being a Public Sector Undertaking, no mens rea can be attributed as no particular independent officer of the appellant is going to be benefited by such act of suppression and concealment of figures. Courts and Tribunal have given such a ruling in umpteen number of cases. It is the not the case of the Department that Annual Book of Statistics has been recovered during any search or investigation. The Book has been routinely given by the appellant to the Department over the years. Therefore, department can not allege suppression of facts etc to invoke extended period of limitation. We find, therefore, that the impugned order is also hit by limitation. We find, in view of the above, that the demand is not sustained either on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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