C.C.E. Allahabad vs M/S. Nutan Ispat & Power Pvt. Ltd

[Arising out of Order-in-Original No. 28/RPR-I/2007 dated 31.01.2007 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Allahabad .Appellants

Vs.

M/s. Nutan Ispat & Power Pvt. Ltd. .Respondent

Appearance:

Shri G.R. Singh, DR for the Appellant

Shri Bipin Garg, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 22.06.2015

FINAL ORDER NO. 51978/2015-EX(SM)

Per Ashok Jindal:

Revenue is in appeal against the impugned order wherein Ld. Commissioner (A) set aside the order of adjudication demanding duty along with interest and imposing penalty on the respondent on the allegation of clandestine removal of goods.

2. The facts of the case are that on 19.11.2003 the unit of the respondent was inspected. During the course of inspection from the custody of Shri S.S. Tripathy, Production Supervisor, certain records were resumed. On the basis of those records it was alleged against the respondent that the respondent has clandestinely manufactured 788.834 MT of sponge iron in excess to what they have shown in statutory records. On this basis the show cause notice was issued to the respondent demanding duty on clandestine production of goods ultimately cleared by the respondent along with interest and equivalent amount of penalty was imposed. On appeal before the Ld. Commissioner (A) the adjudication order was set aside on the ground that demand has been confirmed on the basis of statement of supervisor and same cannot be the basis of confirming the demand in the absence of corroborative evidence as held by this Tribunal in the case of Chemco Steels Pvt. Ltd. Vs. CCE Hyderabad-2005 (191) ELT 856 (Tri-Bang). Aggrieved from the said order Revenue is before me.

3. Heard the parties. Considered the submissions.

4. During the course of hearing the Tribunal asked the Ld. AR to produce the relied upon documents that is private records recovered from the custody of Shri S S Tripathy, Production Supervisor. Instead of providing the documents the report has been submitted by Additional Commissioner, Central Excise, Raipur stating as under:

5. Further the ground taken by the Revenue is that it is a clear cut case of clandestine production of excess sponge iron by the respondent on the basis of documents recovered from the custody of the Shri S S Tripathy and the statutory records. As the private records are not available for inspection or perusal, moreover, no corroborative evidence has been produced by the Revenue to ascertain the fact that the respondent were engaged in activity of clandestine manufacture of sponge iron and clearance thereon. In the absence of any such fact on record, moreover no contrary decision to that fact. As held by this Tribunal in the case of Chemco Steels Pvt. Ltd. (Supra) wherein it has been held that the private record maintained by Supervisor is not a reliable document, therefore, in the absence of any corroborative evidence with regard to clandestine manufacture of the goods the demand is not sustainable.

6. In these terms, I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/1139/2007-EX(SM)