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TMI Blog2024 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... to each and every invoice, as has been contended by the learned authorized representative. In fact, the figures recorded by the Principal Commissioner have not been disputed in this appeal - It is, therefore, not possible to interfere with the findings recorded by the Principal Commissioner on this issue. Clandestine Removal - removal of the excisable goods by the Noticee M/s. Modi Agro Products (MAP) to M/s. Aviral Biotech and Fertilizers Pvt. Ltd. (ABFPL) - accounts of ABFPL can be relied upon to prove the clandestine removal or not - HELD THAT:- No specific error has been pointed out in the grounds of appeal or by the learned authorized representative appearing for the department - the Principal Commissioner has recorded a finding that the raw material receipts matches with the quantity of the finished goods sold from the factory which have been cleared on payment of appropriate central excise duty. The Principal Commissioner also noticed that the charge of clandestine removal is a serious charge which cannot be made only on the basis of presumptions and assumptions and that the department failed to establish clandestine removal by corroborative evidence. There is no error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52600 of 2018. Four other Excise Appeals were filed by persons upon whom penalties had been imposed. All these five Excise Appeals were decided by a common order dated 17.7.2019. The impugned order dated 28.02.2018 was set aside and the appeals were remanded to the Commissioner for a fresh decision with liberty to raise all the issues before the Adjudicating Authority. The Principal Commissioner has passed the order dated 15.06.2020 pursuant to the directions issued by the Tribunal. 2. The respondent has also filed Cross Objection bearing no. 50191 of 2021 to support the impugned order with a delay condonation application. Good and sufficient reasons have been stated in the application filed for condoning the delay in filing the Cross Objections. The delay is, accordingly, condoned. 3. The Principal Commissioner framed four issues to be decided and they are as follows: (i) Whether there was any clandestine removal of the excisable goods by the Noticee M/s. Modi Agro Products (MAP) to M/s. MARKFED MP Agro? (ii) Whether there was any clandestine removal of the excisable goods by the Noticee M/s. Modi Agro Products (MAP) to M/s. Aviral Biotech and Fertilizers Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord to establish purchases of the excess quantities of raw material or packing material etc which would corroborate the supply of the goods to the Nodal Agencies as part of clandestinely removed goods. Also, the SCN relies upon the Panchanama dated 14.8.2013 drawn in the factory of noticee No. 1. Again, the evidence is to the contrary to the grounds considered as the Officers did not come across any stocks of excess raw material or finished goods of the description shown in these invoices during search of the factory premises. Also, no exercises were carried out to prove a case of excess production using the same quantity of raw material etc. Considering all these factors including recorded data in the statutory records, it would be a little far-fetched to suggest that the said referred unrecorded commercial invoices represented a case of clandestinely supplied goods by MAP as there is no evidence on record in respect of receipt of any of these raw material in excess or is there any evidences of the same having been supplied in by any supplier of raw materials, transportation to the factory etc. 31. Therefore based on the above, I hereby drop the demand of Rs. 3,30,13,508/- r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Mahendra Meena partner of M/s. Aviral Biotech and Fertilisers (ABFPL) in his statements categorically stated that some of the challans may not be recorded as their accounts were not properly maintained. At the onset, as per the said statements, it is amply clear that the accounts of ABFPL cannot be relied upon to prove the clandestine removal, since the records at the primary stage are not complete being non-exhaustive and no conclusion can be drawn on such basis. - Further also, recalling the earlier findings in the case of clandestine removal to the Nodal Agencies M/s. MARKFED MP AGRO, as discussed in the paras supra, and applying the same to the facts in the present case, it is seen that here also the notice alleges a case of clandestine removal of goods worth Rs 3 crores demanding C Ex. Duty amounting to Rs. 90,22,112/-. Since, total raw material receipts matches with the quantity of finished goods sold from the factory and which has been accounted for and the goods are found to be cleared after payment of appropriate duties of Central Excise. Further more, there is no evidence of purchase of excess technical grade from the seized documents, brought on records. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this finding, no specific error has been pointed out in the grounds of appeal or by the learned authorized representative appearing for the department. A perusal of the aforesaid finding clearly shows that the Principal Commissioner has recorded a finding that the raw material receipts matches with the quantity of the finished goods sold from the factory which have been cleared on payment of appropriate central excise duty. The Principal Commissioner also noticed that the charge of clandestine removal is a serious charge which cannot be made only on the basis of presumptions and assumptions and that the department failed to establish clandestine removal by corroborative evidence. There is no error in this finding and indeed none has been pointed out. 12. Regarding the third issue, the Principal Commissioner has recorded the following findings: 44. Again, this is a case where charges for Clandestine Removal has been alleged on the basis of third party records. The whole case in fact has been framed on the basis of purchase registers (private records) submitted by M/s Sumitra Agro tech (third party). As discussed in the foregoing paras, it is again pontificated that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dealers as narrated in the Notice no. DGCEI/BhZU/12001/07/2015/1670 dt. 02.08.2016, I here observe that the demand of Rs. 12,96,503/- has been constructed on the prime allegation that M/s MAP had manufactured and cleared above products to dealers under cover of delivery challans which were not recorded in the accounts of MAP for the purpose of payment of Central Excise duty and other taxes by violating statutory provisions/norms. These allegations have not been projected with sufficient corroborative facts and closing evidences. Apparently no linkages have been investigated to establish such a finding by the department. As already discussed by me in detail well-supported by the catena of judicial pronouncements, the case of clandestine removal does not sustain without the observations duly corroborated by the documentary/material evidences. 17. The Principal Commissioner has observed that the allegation of clandestine removal has not been corroborated by clinching evidence and no linkages were investigated to establish such a finding. This finding does not call for any interference as no specific error could be pointed out by the department. 18. In this view of the matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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