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TMI Blog2023 (7) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 by invoking extended period of limitation. It is found that time and again it is held by the judicial pronouncements 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, in the absence of any statement or investigation against the appellant with corroborative evidence, the impugned order is not sustainable. Accordingly, the same is set aside. Appeal allowed. - Excise Appeal No. 162 of 2012 - FINAL ORDER NO. 75906/2023 - Dated:- 4-7-2023 - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. But as per the daily stock account, only 7566.57 MT ingot was shown to have been consumed captively for manufacture of rolled products. Hence, 1345.10 MT ingots consumed captively was not shown in DSA and it appers that the rolled products manufactured out of this quantity of inputs have been cleared without payment of duty. Since as per Form 3CD the percentage of yield in rolling mill division is 94.43%, it seems that by captive consumption of 1345.10 of ingot the said appellant had manufactured 1271 MT of rolled products and cleared them without payment of Central Excise duty amounting to Rs.47,00,463.00/- as basic + 94,009.00 as E.Cess + Rs.47005.00 as S HCE. Cess. Totalling to Rs.48,41,477.00/-. 2.3 On further scrutiny of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant submits that as per the show cause notice demand has been confirmed due to some variation in the figures shown in audit report and ER-1 filed by the appellant before the department without any evidence to show that the appellant has cleared clandestinely manufactured goods. He also submitted that in this case the period involved is 2006-07 whereas show cause notice has been issued on 01.03.2011 on the basis of the figures shown in audit report of the year 2006-07. As the audit report is a public document available on record, in that circumstances, extended period of limitation is also not invocable. 5. On the other hand the Ld.AR supported the impugned order. 6. Heard the parties. 7. Considered the facts that in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue 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. The Revenue s reliance on the Tribunal s decision in the case of Victor Component Systems Pvt.Ltd. referred (supra) is not appropriate inasmuch as it is seen that in that case, the Revenue relied upon the entries made in private records seized and recovered from the appellant s premises and the matter was remanded for requantification, by taking into account the sales figures as reflected in the Sales Tax Returns. This was so done at the request of the appellant. I find no justification to follow the same in contrast to the Tribunal s decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. For this purpose no investigation was conducted by the Department. 10. Further in the case of Tally Solutions Pvt.Ltd. v. CCE, Bangalore [2020 (41) GSTL 520 (Tri.-Bang.)], the Tribunal observed as under:- 8. The appellants have vehemently fought on the issue of limitation. They pleaded that SCN was issued on 5-9-2011 whereas the normal period expired on 10-9-2010; the SCN was issued on the basis of the Audit of records maintained by the appellants; therefore, extended period cannot be invoked by alleging suppression and that they were also submitting/filing the Returns regularly. He relies upon the decisions in CCE v. ZYG Pharma Pvt. Ltd. - 2017 (358) E.L.T. 101 (M.P.); CCE v. Sanmar Speciality Chemicals Ltd., 2016 (43) S.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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