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TMI Blog2019 (2) TMI 1864X X X X Extracts X X X X X X X X Extracts X X X X ..... out the short production as clandestine production and its removal without payment of duty. This Tribunal has time and again held that such standard has been laid down only to provide a starting point of investigation and no liability can be fastened on the assessee in absence of corroborative evidence of clandestine manufacture and removal - Admittedly, in the facts and circumstances of the present case, there is not a single instance of either clandestine manufacture and/or removal found by the Revenue. Appeal dismissed - decided against Revenue. - Excise Appeal No. 53574 of 2018 With Excise Cross No. 51305 of 2018 - Final Order No.51758 of 2019 - Dated:- 11-2-2019 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, there appears to be short accountal of production of 27,77,829 kgs. of M.S. Ingots and the same was apparently cleared by them without payment of duty. Accordingly, it appeared that the respondent has not paid duty amounting to ₹ 1,07,66,054/- including cess during the said period by contravening the provisions of Central Excise Act and Rules. Accordingly, show cause notice dated 30.04.2015 was issued. The show cause notice was adjudicated vide order-in-original dated 3.06.2016 confirming the proposed demand with interest and equal amount of penalty. 3. On appeal filed by the assessee before this Tribunal, being Appeal No.E/52525/2016, this Tribunal vide Final Order No.A/50269 of 2018 EX-(DB) dated 10.01.2018, allowed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Return detailing the quantity of production and clearance of finished goods. Their records for the relevant period already stand audited by the officers of Central Excise Audit and no objection was raised. In view of these facts, the extended period of limitation cannot be invoked. 4. Ld. Commissioner called for report from the Asstt. Commissioner having jurisdiction over the factory of the respondent with direction to furnish the report in line with the directions of this Tribunal. The Joint Asstt. Commissioner vide letter dated 9.5.2018 has reported that -- that records for the impugned period viz RG-1, ER-1, ER-6,ER-5 etc. has been scrutinized in the light of the Hon ble CESTAT Final Order No. 50269/2018 dated 10.01.2018 and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, ld. Commissioner was pleased to hold that the demand raised vide show cause notice is not sustainable and is fit to be dropped. 7. Being aggrieved, the Revenue has filed the present appeal on the following grounds:- (a) Whether the Commissioner has erred in dropping the demand by considering runners and risers as final product and adding their quantity in the quantity of MS Ingots for calculating the input-output ratio as declared by the assessee; (b) Whether the Commissioner has erred in not examining the records to ascertain as to whether the quantity of recycled runners and risers was added to the quantity of scrap to ascertain the quantity of input used for calculating the input-output ratio declared by the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, this Tribunal has been pleased to set aside the demand allowing their appeal vide Final order No.52985 of 2018 dated 14.09.2018 in Appeal No.51663 of 2018 (SM). Further, the ld. Counsel refers to the grounds of his cross objection and prays for dismissal of the Revenue s appeal. 10. Having considered the rival contentions, we find that save and except the theoretical calculation and /or based on some production ratio stated by the assessee in their ER-5 Return, Revenue has worked out the standard production, which should have been achieved and has accordingly worked out the short production as clandestine production and its removal without payment of duty. This Tribunal has time and again held that such standard has been laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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