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TMI Blog2024 (4) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... payment for clandestine removal of the goods by illicit means has been brought on record. Mere documents recovered from the premises of a third party cannot be the basis to allege clandestine removal of goods - Moreover, it has not been ascertained as to who was maintaining those documents and who had kept these documents in the premises of M/s. EFPL. Therefore, the Revenue has failed to establish their case of clandestine removal of the goods in question, particularly in view of the decision in the case of M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA OTHERS [ 2014 (9) TMI 243 - ALLAHABAD HIGH COURT] wherein the Hon ble High Court of Allahabad has observed we are of the opinion that when there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible. No purchase of raw material out side the books have been proved. Penalty - HELD THAT:- As there is no corroborative evidence available on record in support of the charge of clandestine removal of the goods, the demand of Central Excise Duty is not sustainable against the appellant. As the demand of duty is not sustainable, consequently, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that their Jagatpur office was used for marketing purposes only. He had expressed his ignorance about the documents and as to who maintained those documents and also could not say as to whether all those documents were written by the same person or not and ultimately stated that he could not recognize those documents. 3. After investigation, a Show Cause Notice dated 30.06.2011 was issued to the appellants alleging that the loose sheets and notebooks recovered in their premises i.e., the premises of M/s. EFPL, are documents reflecting clearance of goods without payment of duty. It has been mentioned in the Show Cause Notice that some entries also match with the invoices of the appellant and hence, those entries are nothing but reflection of clearance of the goods without payment of duty. Accordingly, Central Excise Duty amounting to Rs.1,12,98,357/-was sought to be demanded for the period from February 2007 to October 2008 along with interest and for imposition of penalty. 4. The appellant contested the issue, but the demand on the ground of clandestine removal of the goods was confirmed by the adjudicating authority; penalty on all the appellants was also confirmed. Against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were never maintained by the appellant or any employee of the appellant; no discrepancy in the stock verification was found; no shortage or excess was found during the course of investigation. He submitted that for the allegation of clandestine removal, some positive evidence is required, which is absent in this case. 5.4 Moreover, he submitted that although the visit took place on 18.03.2010, the Show Cause Notice had been issued on 30.06.2011; the extended period of limitation is not invokable. 5.5 He placed reliance on the following case-law: - i. K. Rajagopal v. Commissioner of Central Excise, Madurai [2002 (142) E.L.T. 128 (Tri. - Chennai)] ii. Portland Cement (I) Ltd. v. Commissioner of Central Excise, Lucknow [2015 (326) E.L.T. 304 (Tri. - Del.)] iii. Rajpur Forging Pvt. Ltd. v. Commissioner of Central Excise, Rajpur [2016 (335) E.L.T. 297 (Tri. - Del.)] iv. Commissioner of Central Excise v. Mira Silk Mills [1999 (112) E.L.T. 934 (Tri.)] v. T.G.L. Poshak Corporation v. Commissioner of C.Ex., Hyderabad [2002 (140) E.L.T. 187 (Tri. - Chennai)] vi. Nidhi Auto Pvt. Ltd. v. Commissioner of C.Ex., Noida-I [2020 (33) G.S.T.L. 419 (Tri. - All.)] vii. A.R. Shanmuga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, no evidence has been produced by the Revenue with regard to excess purchase and payment thereof. No evidence in the form of excess consumption of electricity was brought on record. Moreover, no payment for clandestine removal of the goods by illicit means has been brought on record. Mere documents recovered from the premises of a third party cannot be the basis to allege clandestine removal of goods. 9.2 Moreover, it has not been ascertained as to who was maintaining those documents and who had kept these documents in the premises of M/s. EFPL. 10. Therefore, as held in various decisions cited by the appellant hereinabove, the Revenue has failed to establish their case of clandestine removal of the goods in question, particularly in view of the decision in the case of Continental Cement Company reported in 2014 (309) E.L.T. 411 (All.) (supra) wherein the Hon'ble High Court of Allahabad has observed as under: - "10. We have heard the learned counsel for the parties and gone through the material available on record, from which it appears that Shri Shubhashis Dev, Government Examiner of questioned documents, Shimla gave his written opinion dated 12-6-1998, wherein he has s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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