Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. Amrit Soap Company on 22 April, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Excise Appeal No. 58100 & 58366 of 2013 - Ex (SM)
[Arising out of Order-In-Appeal No. CCA/CHD/31-32/2013 dated 28/02/2013 passed by Commissioner of Central Excise & Service Tax, Ludhiana Punjab. ]
For approval and signature:
Honble Mr 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?
Commissioner of Central Excise Appellants
& ST, Ludhiana
Vs.
M/s. Amrit Soap Company. Respondent
Appearance:
Shri R K Mishra, AR for the Appellants Shri P K Mittal, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing : 16.1.2015 Date of decision : 22.4.2015 FINAL ORDER NOS. A/ 51392-51393 /2015-Ex(SM) Per Ashok Jindal :
Revenue is in appeals against the impugned order wherein the proceedings against the respondent have been dropped by setting aside the demand of duty along with interest and by reducing the redemption fine and penalty on the respondent.
2. Brief facts of the case are as under :
3. Facts of the case are that M/s. ASC and M/s. ASC-II are registered with the department vide registration No. AABFA8799DXM001 for the manufacture of laundry soaps under the brand name Chhokra and others, unbranded soaps (Nirol soap), detergents and toilet soaps units were a single financial entity i.e. a partnership concern with two manufacturing units and two different locations and were owned and controlled by Shri Amrit Lal Gupta and his two sons namely, Shri Rajesh Gupta and Shri Chandan Gupta as partners.
3.1 As per the impugned order an intelligence was received in the office of Director General of Central Excise Intelligence (hereinafter referred to as DGCEI) indicated that the aforesaid units were evading payment of appropriate Central Excise Duty by way of clandestine production and clandestine removal of their finished products viz laundry soap. It had also been gathered by DGCEI that they were showing consumption of Cenvatable fatty materials i.e. palm fatty acid oil in their records, but in fact non-Cenvatable fatty acid such as rice, bran fatty acids and castor oil were also being consumed by them by procuring the same from the local market without bills, and that the excess quantity of laundry soaps manufactured out of those unaccounted for oils was being cleared in a clandestine manner and without payment of duty leviable thereon.
3.2 Thereafter, searches were conducted at the factory premises of M/s. ASC and M/s. ASC-II on 24.3.2009 by the DGCEI and documents /records deemed relevant for further investigation were seized under Panchnama drawn on the spot. Scrutiny of the Panchnama drawn at the time of search of the factory premises of M/s. ASC II on 24.3.2009 revealed that at the time of search Shri Mukesh Tiwari, Incharge and Shri Krishan Chand, Production Supervisor were present in the factory. The physical verification of the stocks of finished goods lying in the factory premises was conducted as per Annexure 2 to the Panchnama. As the production records (RG0-1 register) were not maintained up to date, the discrepancies, if any, could not be immediately worked out. Therefore, the entire stocks of finished goods were placed under detention pending verification thereof with the updated Central Excise records to be produced by M/s. ASC-II. Subsequently M/s. ASC-II produced the updated RG-I register (Computer Print out) for the month of March, 2009 and the stock position as physically verified was reconciled with the same. As a result thereof, stocks of various types of laundry soaps, toilet soaps and detergent powder valued at Rs. 60,97,401/- (MRP Rs.79,42,340/-) involving Central Excise duty of Rs.5,02,426/- were found in excess of the recorded balance in their RG I register and hence the detention thereof was converted into seizure vide letter dated 24.4.2009 in terms of provisions of Section 110 of Customs Act, 1962, as made applicable to like matters of Central Excise vide Notification No. 68/63-CE dated 04.05.63, as amended, on the reasonable belief that the same were intended for clandestine removal and hence liable for confiscation.
3.3 In order to confront M/s. ASC and M/s. ASC II with the discrepancies detected in their stock position of finished goods which were placed under seizure, statement dated 24.4.2009 of Shri Chandan Gupta, partner, was recorded as per detail given in Para 1.5 of the impugned order wherein on being asked about the reason of difference in stock position, he could not give any plausible explanation and stated that they would check up the position and inform accordingly but in his subsequent statement dated 09.09.2009 he again could not give any explanation in this regard. Thus it appeared that the finished goods found over and above the recorded balance were not entered in their records with intent to clear the same without payment of Central Excise Duty leviable thereon. The show cause notice for the seizure part had been issued vide F.No. IV(6)LRU/07/2009 /1031-1035 dated 09.09.2009,.
3.4 Further on reconciliation of the stock position physically verified with the updated RG-I register (Computer print only) submitted by M/s. ASC-II for the month of March, 2009, revealed that stocks of various finished goods valued at Rs.3,20,.289/- involving Central Excise Duty of Rs.26,392/- were found short vis-`-vis their recorded balance. Shri Chandan Gupta in his statement dated 24.3.09 admitted the difference but could not give any plausible explanation / reason for the same.
3.5 Scrutiny of Panchnama drawn at the time of search of the factory premises of M/s. ASC on 24.3.2009 revealed that during the course of search, physical verification of the stocks lying in the factory premises was carried out and as a result thereof 8808 Kgs. of Nirol Soap valued at rs.2,90,664/- involving Central Excise duty of Rs.23,951/- was found short of the stock position as per their records. Shri Amrit Lal Gupta and Shri Chandan Gupta Partrners, who were present in the factory premises at the time of search, could not give any plausible explanation for the said shortage. Thus it appeared that the same had been cleared by them clandestinely without payment of Central Excise Duty leviable thereon.
3.6 Further detailed investigation were conducted and statements of various persons were recorded as detailed in para 1.9 to para 1.24 of the impugned order.
3.7 After the completion of investigation, a show cause notice was issued to M/s. ASC vide F. No. IV(6)LRU/INV/07/2009/1033 dated 09.09.2009 and another show cause notice was issued to M/s. ASC and M/s. ASC II vide F. No. IV(6) LRU/INV/07/2009/285 dated 29.03.2010.
4. The adjudicating authority decided both the show causes vide the impugned order wherein the adjduciating authority confirmed the demand of Central Excise duty amounting to Rs.5,72,501/- against M/s. Amrit Soap Company, Jalandhar Bye Pass Chowk, Ludhiana under proviso to Section 11A(1) along with interest under section 11 AB of the Central Excise Act, 1944; imposed a penalty of Rs.5,77,501/- against M/s. Amrit Soap Company, Jalandhar Bye Pass Chowk, Ludhiana under Section 11AC of the Central Exciswe Act, 1944 read with Rule 25 of Central Excise Rules, 2002; confirmed a demand of Rs.157,85,226/- against M/s. Amrit Soap Company (Unit-II), Village Mandiani Mullapur, Ludhiana under proviso to Section 11A (1) alongwith interest under Section 11 AB of the Central Excise Act, 1944 imposed a penalty of Rs.17,58,226/- against M/s. Amrit Soap Company (Unit II) Village Mandiani, Mullapur, Ludhiana under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rule, 2002; confiscated the goods seized from M/s. Amrit Soap Company (Unit II), Village Mandiani, Mullapur, Ludhiana, valued at Rs.60,99,718/- involving Central Excise Duty of Rs.5,02,426/- under Rule 25 of Central Excise Rules, 2002 but gave an option to redeem the same on payment of fine of Rs.3,00,000/- and imposed a penalty of Rs.5,02,426/- on M/s. Amrit Soap Company (Unit-II), village Mandiani Mullapur, Ludhiana under Rule 25 of the Central Excise Rules, 2002.
2. The said order was challenged before the learned Commissioner (Appeals) who after going through the detailed discussions has reduced the redemption fine of Rs.10,000/- and penalty of Rs.5,000/- and on adjudication order was set aside. Aggrieved from the said order, Revenue is before me.
3. Learned AR submits that in this matter, the learned Commissioner has erred in deciding the issue and not appreciating the facts on record. There was excess of finished goods found at the time of investigation and which has been admitted by the respondents. Therefore, the impugned order is required to be set aside on this ground alone as these goods were not entered into statutory records. Further, the buyer of the goods have also admitted that they were receiving the goods from the respondent without any cover of duty paid invoices. Further, the payment of duty along with interest and 25% of the penalty paid by the respondent clearly reflects their own confession / admission of the liability of excise duty. In these terms impugned order is to be set aside.
4. On the other hand, the learned Counsel for the respondent submits that during the course of investigation, certain finished goods were alleged to be found by the Inspecting team but the goods were not in finished condition. Therefore, they were not entered in the statutory records. Therefore, the allegation that there was excess of finished goods which were sought to be removed clandestinely is not sustainable and said fact has been appreciated by the learned Commissioner (Appeals) in detail. Therefore, allegation in the show cause notice qua confiscation of the goods and to propose redemption fine and penalty is not sustainable and the learned Commissioner (Appeals) has rightly set aside the order of confiscation. He further submits that there is another allegation in the show cause notice that the appellant is manufacturing certain goods / raw material has been received without payment of duty and same has been cleared without payment of duty. The basis of this allegation is that appellant is manufacturing the batch of 1200 Kgs and on the statement of Shri Rajesh Gupta, partner who stated that for every batch of 1200 Kgs., 100 Kgs soap has been clandestinely manufactured and removed. To counter this allegation, he submits that the raw material is only 840 Kg for the said batch and from the raw material of 840 Kg. how the goods of the weight of 1200 Kg, finished goods can be manufactured. Moreover, the respondent made a proposal to the adjudicating authority to appoint two independent officers in whose presence the respondent shall produce soap with same ingredient and same quantity of raw material as stated by Shri Rajesh Gupta and the outcome of these ingredients on production of goods would not be 1200 Kg of finished goods. In these circumstances, when the respondent themselves offered to inspect the manufacturing process and same has not been accepted, therefore allegation is not sustainable in the absence of any evidence on record for procurement of raw material, electricity consumption, transportation of goods etc. Therefore, learned Commissioner (Appeals) has rightly observed and set aside the order of adjudication.
5. Heard the parties. Considered the submissions.
6. In this case, mainly two issues are to be decided by me. (a) whether the goods found in excess at the time of investigation are liable for confiscation or not; and (b) whether shortage of raw material found during the course of investigation and thereafter allegation of procurement of raw material clandestinely and manufacturing thereof and clearance of finished goods without payment of duty is proved by the department or not.
7. Both the issues are examined by the learned Commissioner (Appeals) in the impugned order, wherein he observed as under:-
9. In the impugned order the adjudicating authority has confiscated the goods valued at Rs.60,99,718/- found lying in the factory premises of M/s. ASC-II obse5rviing that Further excess stock of finished goods seized from the factory premises of M/s. ASC II valued at Rs.60,97,401/- involving Central Excise duty of Rs.5,02,426/-, are liable for confiscation under rule 25 of the Rules and Noticees are liable for penal action under 25 of the Rules for the same. Further, finished goods valued at Rs.3,20.289/- involving Central Excise duty of Rs.26,392/- were also found short. a. The issue to be decided in the instant case is whether the goods lying in the factory premises were liable to be confiscated. The other issue to be decided is whether the penalty is imposable for the goods said to be removed clandestinely.
b. The said Rules 25 of Central Excise Rules, 2002 reads as under:-
(1) Subject to the provisions of section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer, -
(a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or
(b) does not account for any excisable goods produced or manufactured or stored by him; or
(c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or
(d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or [two thousand rupees], whichever is greater.
An order under sub-rule (1) shall be issued by the Central?(2) Excise Officer, following the principles of natural justice.
c. From a plain reading of the above it is clear that as per the said Rule 25(b) goods are confiscated when the manufacturer (b) does not account for any excisable goods produced or manufactured or stored by him. The meaning of the expression account for in the said Rule is important to confiscate the goods. The expression account for in the said Rule is important to confiscate the goods. The expression account for was discussed by the Honble CESTAT in the case of Pepsi Foods vs. CCE [2002 (139) ELT 658 (CEGAT) as under:
10 .Even apart from the above observations of the? Tribunal regarding the requirement for mens rea, we feel that Rule 173Q(b) can not take in accounting failure simplicitor. This is clear from the language of the sub-rule itself. The sub-rule relates to does not account for any excisable goods (emphasis added) and not to cases involving does not account excisable goods. The distinction between the expressions writing accounts and accounting for is a clearly understood one. The former relates to obligation to write accounts correctly and the latter relates to accounting for excisable goods manufactured, produced, stored etc. i.e. explaining as to the correct position of the excisable goods, manufactured by the assessee. In short, the disposal of the goods in accordance with legal provisions. Thus, sub-rule (b) of Rule 173Q relates only to cases where an assessee fails to explain that the goods have been dealt with according to law, and not to cases where there had been failure to make correct entries in account books. We find that this view has already been taken by a Single Bench of this Tribunal in the case or CCE, Hyderabad v. Continental Chemical [2001 (46) RLT 850]. Therefore, confiscation under Rule 25 of the Central Excise Rules, 2002, can be made where the assessee fails to explain that the goods have been dealt with according to law, and not to cases where there had been failure to make correct entries in the account books.
d. It has been admitted in the impugned order that the impugned goods were lying in the factory premises of the appellant. Under Central Excise law, the entry of manufactured goods should be made in production records only after the goods are manufactured, finished and packed by the assessee; that till the process of finishing, testing or packaging are carried out on the goods, the goods cannot be said to be fully manufactured. It is not clear from the impugned order that whether the said goods were fully finished or not and, therefore, as such their entry in the records not made cannot be held to be a contravention of any kind of any provision of law.
I find that the adjudication authority has not returned any finding in the impugned order on the above said position of the goods. The adjudicating authority has even not mentioned in the impugned order that the said goods were fully finished and ready to be entered into records as provided under law. the Honble CESTAT in the case of United Repackaging vs. CCE [2000 (121) ELT 658 (CEGAT)] held as under:
8. The Supreme Court in the case of Empire Industries Ltd. v. U.O.I. 1985 (20) E.L.T. 179 (S.C.) = 1986 (162) ITR 846 (S.C.) has explained the concept of process in excise law. In view of the principle laid-down therein and other relevant decisions, processes incidental or ancillary to packing are to be included in the process of manufacture; manufacturers in the sense of bringing the goods into existence as these are known in the market, is not complete until the detergent powder is packed in suitable packs [refer Collector of Central Excise, Calcutta v. East End Paper Industries Ltd. 1989 (43) E.L.T. 201 (S.C.) = 1990 (186) ITR 105 (S.C.)].
The above said decision was maintained by the Honble Supreme Court vide [2003 (157) ELT 255 (SC]). Similar, decisions were also delivered in the case of CCE vs. Ashyan Vanaspatic Industrial P Ltd. [1996 (85) ELT 53 (CEGAT), Kashmir Vanaspati Ltd. vs. CCE[1996 (85) ELT 150 (CEGAT) and Tide Water Oil vs. CCE -1999 (105) ELT 669 (CEGAT).
8. I do agree with the observations of the learned Commissioner (Appeals) and as contended by the respondent that the goods were found excess were not in complete finished condition as these goods were not packed and could not be entered in the statutory records. This fact has not been examined at the time of investigation. Therefore, the defence taken by the respondents is acceptable in the absence of corroborative evidence. Therefore, I do agree with the finding of the learned Commissioner (Appeals) that goods are not liable for confiscation. Accordingly, the proposal of confiscation of goods is set aside. Consequently, penalty, redemption fine are not imposable on the respondent.
9. Further I find that another issue learned Commissioner (Appeals) again has examined as under:
f. I find that while discussing the allegation that the appellants had removed excisable goods without payment of Central Excise Duty, the adjudicating authority in Para 1.11 has relied on the miscellaneous paper file containing 167 pages. It is nowhere discussed in the impugned order as to who prepared these papers and on whose directions these papers were prepared, whether these papers in loose form carried names of appellants or whether they contained the signatures of any of the partners of any of the appellants. I also find that on the basis of these papers four of the buyers were said to be identified as namely, M/s. Singla Traders, Gokul Road, Ludhiana, M/s. B R Trading Company, Gill Road, Ludhiana and M/s. Jindal Tradinbg Company, Behind ATI, Gill Road, Ludhiana and M/s. Singla Trading Co. Main Bazar, Ahmedgarh, Distt. Ludhiana. I find that statements of the concerned persons of these buyers were recorded as per Para 1.12 of the impugned order. All the statements appear to be identical and though in all the statements the concerned persons have admitted that they received laundry soap and detergent powder from the appellants on cash but none of the persons has disclosed the quantity of the laundry soap and detergent powder received in cash from the appellants, the dates on which they were received, the quantity separately in respect of M/s,. ASC and M/s. ASC and M/s. ASC II and also it is not clear at what value these items were received from the appellants. In the absence of these vital ingredients it is not possible to quantify and link the alleged clandestine removal of goods to the appellants. Further, in para 1.11 it is mentioned that said loose papers contained names of the buyers in short form and Shri Chandan Gupta could identify all of them. But is not explained why only these four were picked up and rest were left for conducting further inquiries when it was necessary to conduct investigations from all the buyers to quantify the receipt of goods from each buyers period wise to prove and quantify the clandestine removal thereof. Even the above statements do not mention the fact that the said buyers had received the goods without payment of duty. Therefore, no case has been made out.
g. I find that in order to prove the allegation that the appellants manufactured unaccounted excisable goods and removed them clandestinely without payment of Central Excise duty, the adjudicating authority has held in para 4.7 of the impugned order as under:-
I further observe that on scrutiny of the records of the Noticee by the DGCEI, it was noticed that prior to March, 2006, when laundry soap was exempted from duty, the Noticee had been using various oils, such as Castor Oil, Crude Palm Oil, Palm Fatty Oil and Rice Bran Oil Fatty Acid in the manufacture of laundry soap. However, from March, 2006onwards i.e. immediately after imposition of duty, the Noticee stopped showing consumption / purchase of any oil other than Palm Fatty Acid Oils i.e. Cenvatable input unlike rice Bran Oil Fatty acid and castor oil, which were non dutiable inputs. Thus the Noticees were claiming to manufacture laundry soap by using palm fatty acid only. As per technical specifications of palm fatty acid oil, it is hard fat with a higher titre value. As per herbal soaps and Detergents hand Book published by the National Institute of Industrial Research, Delhi Titre is the setting point of fatty acids contained in an oil i.e. it is the temperature, in degree Celsius, at which an oil/ fat solidifies. The higher the Titre, the harder is the fat. The physical hardness of soap depends upon the type of oil used. In order to obtain right hardness. It is common to use a blend of hard and soft oils for soap making. While palm fatty acid oil, Tallow, and grease are hard fats and rice bran oil, castor oil, corn oil coconut oil groundnut oil cotton seed oil etc. soft oil with low titre value and alright blend thereof has to be used to obtain right hardness as being done by the Noticee before laundry soap has to be used to obtain right hardness as being done by the Noticee before laundry soap came under the purview of Central Excise duty when they using a blend of castor oil, crude palm oil, palm fatty and rice bran fatty acid oil. As per the Herbal soap and detergents Hand Book. The titre value range of oils earlier used by the Noticee is as follows:
i) Palm Oil = 40.47 degree Celsius
ii) Rice Bran Oil = 27.29 degree Celsius
iii) Castor Oil =3-5 degree Celsius
Since the Noticee in their records were claiming to manufacture laundry soap by using only Palm Fatty Acid Oil having titre value range of 40-47 degree Celsius, a representative sample of their laundry soap was got tested from the department of Chemistry, Guru Nank Dev University (GNDU), Amritsar, to ascertain the titre value of the soap manufactured by the Noticee, , GNDU, Amritsar, in their Analysis Report dated 09.11.2009 reported that the titre value of the Chhokra laundry soap was 37+1/-1 degree Celsius and the melting point of the same was 39+1/-1 degree Celsius. Thus soft oils with lower titre value range had to be added necessarily in order to bring down titre value rage of 40-47 degree Celsius of Palm Acid Fatty Acid Oil to titre value of 37 degree Celsius of soap manufacture by them. From the above it is clear that the adjudicating authority has based his finding regarding manufacture of laundry soaps only on the titre value of the oils used.
From the same Herbal Soaps and Detergent Handbook which the adjudicating authority has referred to, I find the following entries at Page 31-32 Formulation of oil blewnds for soaps While formulating oil blends for Laundry or toilet soaps the following important criteria should be considered:-
1. Choice of oils and fats available for making soaps.
2. Iodine value, titre and fatty acid composition of constituents oils and fats
3. Facilities available for pre-treatment and upgrading of oils.
4. Price of oils.
5. Rebates allowed by the government for usage of certain minor / non traditional oils in soapmaking.
6. Equipment available for soap making.
7. Requirement of quality of soap in terms of colour, odour, consistency, lather, rate of wear, smoorthness, surface finish, cracking tendency, frittiness and others.
Iodine value, titre and fatty acid composition Iodine value of an oil indicates consistency and stability of the resulting soap. Titre gives similar information except in the case of hydrogenated castor oil, where the Titre value is high but the soap may not be as hard as is dictated by this value. Hydroxy acid is a major component of castor oil, unlike in most other oils, and it behaves differently. This is why castor oil is processed differently prior to use.
Earlier, the INS factory (i.e. saponification value minus iodine value) and Titre value of oils were used as criteria for formulating oil blends. These are empirical factors that do not find universal application.
The fatty acid composition is a very useful tool in formulating the oil for soap making. If this is known in advance. It is possible to formulate fat blends in accordance with the type of soap required. The fatty acid composition oil can be easily determined by gas liquid chromatography (abbreviated as GLC). The composition of an oil may very slightly depending upon the condition under which the oil seeds are grown. It is however possible to arrive at average value for each oil by carrying out analysis on a number of oils.
Sometimes GLC does not provide the entire composition e.g. isomers of oleic acid affect the quality of the soap. The determination of trans isomer of oleic acid is carried out by using on infra-red spectrophotometer. Similarly, it is important to know the hydroxyl and actostearic acid content of processed castor oil since these also affect the processing and quality of the soap. Chemical methods are available for estimating these constituents.
A plain reading of the above clearly reveals that the findings of the adjudicating authority are at variance with what has been detailed in the said Hand Book. Further, the adjudicating authority has not explained in the impugned order as to why the samples were sent to Guru Nanak Dev University (GNDU), Amritsar, instead of any other designated authority under the law. It is not brought on the record whether the persons who conducted the test were qualified to conduct the test and that whether their test report was acceptable under law and by what authority of law. It is also not brought on record what tests were carried out by the said person/ persons. It is also not brought out on record how the test report conducted on laundry soaps manufactured by the appellants. Thus the test report relied upon by the adjudicating authority becomes inadmissible under the law. i. I find that the adjudicating authority has calculated the quantities of laundry soaps manufactured by the appellant taking that in every batch of 1200 Kgs laundry soap, palm fatty acid oil 500 Kg, rice bran fatty acid 80kg. castor oil 20 Kg.soap stone 60Kg. sodium silicate 90 Kg and dolomite 90 Kg was mixed. The total of these items comes to 840 Kg. The adjudicating authority has not explained how 1200 Kgs. of laundry soap was obtained uniformly in all varieties of laundry soaps manufactured by the appellants. The adjudicating authority appears to have based his findings only on the statement of Mr. Rajesh Gupta. The adjudicating authority has not explained in the impugned order what qualifications the said Rajesh Gupta had and why an expert opinion was not obtained in the matter.
j. Further, I find that the adjudicating authority has not brought out in the impugned order how goods were removed from the factory premises of M/s. ASC and M/s. ASC-II and the said buyers received them and how much quantity each buyer received and quantum of payment made by each buyer. Based on the above facts, the charge of clandestine removal falls flat and is not supported by the facts as above and the case fails as a consequence.
10. I have gone through the above observations of learned Commissioner (Appeals) and found no fault in the same. Further, I find that no efforts were made by the revenue to reveal the truth by examining the manufacturing process to ascertain the raw material consumed and resulted output. Therefore, I hold that charge of clandestinely removal of goods is also not sustainable against the respondent in the absence of any contrary evidence against the respondent.
11. In these terms, I do not find any infirmity in the impugned order, the same is upheld. Appeal filed by the Revenue are dismissed.
(Pronounced in the open court on 22.04.2015 )
( Ashok Jindal ) Member(Judicial)
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