Private records alone cannot prove clandestine removal; duty demand was set aside, while confiscation and reduced penalty remained.

Confiscation of excess and unlabelled biris was upheld because the goods were found beyond the recorded stock and the explanations offered were unsupported by contemporaneous records. The duty demand based on private records was set aside, as one record maker was not examined and no independent corroboration or verification established clandestine removal; the assessee received the benefit of doubt. Penalty on the proprietary firm was reduced in light of the partial proof and failure of the demand, while the separate penalty on the proprietor was set aside because the firm was proprietary in nature.

---

---

Issues: (i) Whether confiscation of the 57 bags of biris and 1299120 loose unlabelled biris under Rule 209 of the Central Excise Rules, 1944 was sustainable; (ii) Whether the duty demand on 448129690 biris, raised on the basis of private records, was sustainable; and (iii) Whether the penalties imposed on the firm and its proprietor required interference.

Issue (i): Whether confiscation of the 57 bags of biris and 1299120 loose unlabelled biris under Rule 209 of the Central Excise Rules, 1944 was sustainable.

Analysis: The goods were found in excess of the recorded balance, and the explanations regarding duty payment, customer returns, and delayed entry in the statutory record were not supported by any contemporaneous record. The serial numbers in the gate passes did not tally with the register entries, no intimation of return was shown, and no supporting evidence was produced for the alleged branch-wise movement or prior-day production.

Conclusion: The confiscation of the 57 bags and 1299120 loose biris was upheld.

Issue (ii): Whether the duty demand on 448129690 biris, raised on the basis of private records, was sustainable.

Analysis: The demand rested on private records said to have been maintained by employees, but the maker of one such record was not examined and no independent investigation or corroborative evidence was produced. In the absence of verification from other sources, the private entries were not treated as reliable proof of clandestine removal, and the assessee was entitled to the benefit of doubt.

Conclusion: The duty demand was set aside.

Issue (iii): Whether the penalties imposed on the firm and its proprietor required interference.

Analysis: In view of the partly proved allegations and the failure of the duty demand, the penalty on the proprietary firm was considered excessive. Since the firm was proprietary in nature, the separate penalty on the proprietor could not survive independently.

Conclusion: The penalty on the firm was reduced and the penalty on the proprietor was set aside.

Final Conclusion: The order was sustained as to confiscation, but the duty demand was annulled and the penal consequences were moderated accordingly, resulting in a partial relief to the appellant.

Ratio Decidendi: In allegations of clandestine removal, private records by themselves do not establish duty liability unless they are independently verified by corroborative evidence; absent such proof, the assessee is entitled to the benefit of doubt.

---