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TMI Blog2020 (7) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed excess inputs were sourced so as to manage such excess clearances. No investigation as regard electricity excess usage. No third party investigation as regards transporters buyers etc. Above all, no attempt to track any money trail as alleged. Law has been settled that where the allegation of duty. To prove the allegation of clandestine sale, further corroborative evidences are also required. Apparently, there is no investigation conducted by the Department qua any of said aspects. Alleged admission of Shri Devi Lal Sahu - HELD THAT:- The statement contains only a declaration to comply with the law. It cannot be taken as an admission of any clandestine removal. Question of the said statement to be the corroboration of the alleged guilt does not at all arise - in the absence of direct admission of clandestine removal the mere fact of the shortage found cannot sustain the charge of clandestine manufacture and removal. Accordingly the confirmation of demand is merely presumptive hence, not sustainable. The adjudicating authority below has based the decision on assumptions and surmises and in total ignorance of the documents and submissions produced/made by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Shri K.Poddar, Authorised Representative for the Department. 5. It is submitted on behalf of the appellant that the original adjudicating authority has confirmed the entire demand on the basis of the discrepancies in the records of the appellant and shortages in the stock of raw-material as well as finished goods but presuming that such discrepancies and shortages are admitted by the employee of the appellant. It is submitted that perusal of statement of Devi Lal Sahu is clear enough that there is no such admission of the alleged gain. There is otherwise no evidence on record for confirming demand raised by the department. But such order of original adjudicating authority has still been confirmed by Commissioner (Appeals), hence, the same is liable to be set aside. Otherwise also there is sufficient evidence to falsify the allegations raised in the show cause notice. The clearances of appellants were duly declared in their ER-1 /ER-6 returns. The copies thereof were duly provided to the adjudicating authorities but they have ignored the same and have proceeded on their own wrong presumption of it to be a case of clandestine removal. It is further submitted that any record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perusing the entire record I observe and hold as follows:- Raid in the premises of the appellant was conducted on 15.03.2013. The raiding team collected the record of weighbridge slips, factory s outgoing register, daily stock account register, dispatch and sales register. They also physically verified the quantity of the stock of raw-material and finished goods. After recording the statement of OSD of appellant, Shri Devi Lal Sahu, the clandestine clearance of 640.4 MT of sponge iron and 11797.8 MT of coal was alleged. The adjudicating authorities below have completely relied upon those documents while confirming the impugned demand of ₹ 26,55,784/- alongwith the interest and penalties. From the show cause notice, it is observed that existence of weighbridge is admittedly within the factory premises. The weighbridge slips are considered as one of the important documents by the adjudicating authorities below providing the alleged clandestine removal. Once the weighbridge exists within the factory premises, the factum of clearance of goods from said weighbridge does not at all arise. This observation is sufficient to hold that weighbridge slips cannot be the evidence for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement Co. Vs. Union of India reported as 2014 (309) ELT 411 (Allahabad) had earlier laid down the criteria of investigation to prove the allegation of clandestine sale in following words: Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. 10. Thus, to prove the allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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