Rachna Gupta ORDER
Rachna Gupta, Member (J)
1. The order in appeal No. 479-17-18 dated 16.02.2018 has been assailed in the impugned appeal. The appellant was issued a show cause notice No. 13/P/20969 dated 23.12.2015 proposing the recovery of excise duty amounting to Rs. 7,61,199/- alongwith the demand of Rs. 28,48,796/-. Interest on these amounts was also proposed with the imposition of penalty upon the Director of the appellant under Rule 25 of Excise Rules, 2002 read with Rule 15 of Cenvat Credit Rules. The said show cause notice was issued after a search was conducted in the premises of the appellant on 31.10.2012/01.11.2012 by the Central Excise Department and it was observed after conducting physical verification of the stock of finished goods and raw-material available in the appellant's premises that the appellants are engaged in procuring of unaccounted raw-materials for illicit manufacture of finished goods and its clandestine removal without payment of Central Excise duty. The said proposal was confirmed vide Order-in-Original bearing No. 68/Adj./2016 dated 23.03.2017. The appeal thereof has been rejected vide the order under challenge. Still being aggrieved, the appellant is before this Tribunal.
2. I have heard Mr. K.K. Menon, ld. Counsel for the appellant and Mr. P. Gupta, ld. Authorised Representative for the Respondent.
3. It is submitted on behalf of the appellant that in fact, there is no shortage in the finished goods/unfinished goods or raw-materials as is alleged by the Department, based upon the documents recovered from the office and factory of the appellant alongwith two months data of weighbridge extracted from the factory. It is submitted that appellant was unable to reconcile those documents at the time of search due to which the show cause notice was issued. However, two replies have duly been given to the Department dated 30th September, 2016 and 21 March, 2017 citing major deficiencies in the investigation. It is submitted that the Department has failed to consider the said submissions and the documents submitted therewith which could have reconciled with the documents recovered by the Department at the site of search to prove that the proposals of show cause notice are wrong and no demand is sustainable against the appellant. It is further submitted that none of the witnesses examined have admitted the existence of allegations. Rather there has been repeated deposition that the clearances from appellant's factory were made under invoice. The Adjudicating authorities have still proceeded on a wrong presumption of such statements to be the admission of clandestine removal.
4. The findings are alleged to be false on the very face of it. It is further submitted that removal of inputs as such was not established by the Revenue and the physical shortage alleged was only based on estimation of stock and stock verification and it was not based on any scientific method of recounting. There has been no investigation at the end of buyers of disputed goods. The entire amount of tax stood paid by the appellant on the date of search itself which has wrongly been taken as the admission of charges by the appellant. The decision in the case of Raika Ispat Udyog Pvt. Ltd. vs. CCE, Raipur- MANU/CE/0279/2016 : 2016 (340) ELT 598 is impressed upon. Reliance in this regard has also been placed on the decision of Tribunal Delhi in the case of CCE vs. ABS Metals Pvt. Ltd. Reported as MANU/CE/0631/2016 : 2016 (341) ELT 425 (Tri.), Delhi. There is otherwise no evidence produced by the Revenue except for the presumption on their part and the payment of the duty demand by the appellant. The allegations of clandestine removal stand absolutely unproved. The onus w........