9911796707
TMI Blog2022 (7) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal of goods which is serious allegation. No statement of has been recorded. In that circumstances the charge of clandestine removal of goods not sustainable as similar issue came up before this Tribunal in the case of M/S CHANDUKA HI-TECH STEEL PVT. LTD. VERSUS CESTAT, KOLKATA [ 2017 (11) TMI 2026 - CESTAT KOLKATA] where Tribunal has observed that the allegation of clandestine activities are serious allegation and are required to be based upon the evidences, which reflected upon the same. In the present case, the Revenue has not made any investigation as regards the clandestine manufacture and clearance of the appellant s final product. In such a scenario, the said finding is neither warranted nor justified. Time and again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2002, the production of steel ingot was shown as 12345.150 MT and steel rolled products as 10447.662 MT. Hence, it appears that in the daily stock accounts, the appellant had suppressed the production of 1455.205 MT of steel ingots and 395.160 MT of steel rolled products and had evaded central excise duty amounting to Rs.51,02,506/-. 2.2 It was also observed on scrutiny of the financial records of 2006-07, such as Annual Report (Additional information to be submitted under part-II of the schedule VI to the company act, 1956, that the said appellant had consumed 8911.67 MT steel ingots in their rolling mill division. But as per the daily stock account, only 7566.57 MT ingot was shown to have been consumed captively for manufacture of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as reflected in the central excise invoice No.804 dt.15.02.2007 and invoice No. 911 dt.27.03.2007. 3. It was alleged that the appellant has suppressed the fact from the central excise department by not mentioning the production and clearance in central excise statutory returns in form ER-1, therefore, evaded the payment of duty and show cause notice was issued to the appellant on 01.03.2011 for the period 2006-07. The matter was adjudicated and demand of duty was confirmed alleging clandestine removal of goods and suppression thereof. Against the said order, the appellant is before us. 4. The Ld.Counsel for the appellant submits that as per the show cause notice demand has been confirmed due to some variation in the figures shown in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er going through the impugned order and after appreciating the submissions made by both sides, I note that admittedly, the findings of the lower authorities are solely based upon the Sales Tax Returns figures. The Tribunal s decision in the case of Vigirom Chem Pvt. Ltd. referred (supra) laying down that the clandestine allegation cannot be made exclusively on the basis of record of sale of goods in the Sales Tax Returns. Otherwise also, I find that the allegation of clandestine activities are serious allegation and are required to be based upon the evidences, which reflected upon the same. In the present case, the Revenue has not made any investigation as regards the clandestine manufacture and clearance of the appellant s final product. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13 . Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 10. Further in the case of Tally Solutions Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures of audit report and ER-1 return which were available with them in time, in that circumstances as held by this Tribunal in the case Tally Solutions Pvt. Ltd. (supra) the extended period of limitation is not invocable as show cause notice for the period 2006-07 has been issued on 01.03.2011 by invoking extended period of limitation. 12. We further find that time and again it is held by the judicial pronouncements as discussed hereinabove that merely on the basis of difference in the figures of audit report and ER-1 return without establishing the parameters of clandestine manufacture and removal of goods, the charge of clandestine removal is not sustainable. Therefore, on merits also, we hold that in the absence of any statement or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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