1987 (6) TMI 159

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....the exit gate of the factory. It has been alleged that VAM had been removed from the place of manufacture/storage without payment of proper Central Excise duty without making any debit entry in PLA and without preparation of any gate pass prior to removal as required under Central Excise Rules, 1944. The Commercial Manager of the Unit accepted the facts in his written statement dated 6-6-1985 regarding non-preparation of the gate pass in respect of above VAM loaded in tanker found standing at the exit gate. A show cause notice dated 31-10-1985 alleging the contravention of Rules 9(1), 52A and 173G of Central Excise Rules was issued to the appellant No. (1) herein, Shri Gurdial Singh, driver of the truck/tanker in which the VAM was loaded an....

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.... 'place from where seized' the officers have entered in the panchnama the following expression:- "at weigh-bridge near the gate". Learned advocate has submitted that this is the most authentic record regarding the place where the truck was found. Learned adjudicating authority's finding, according to the learned advocate for the appellant, on the basis of statement dated 6-6-1985 of the Commercial Manager that the truck was found near the gate after weighment is not correct. Learned advocate points out that the statement of the Commercial Manager that the truck was found near the gate has to be read in conjunction with the panchnama. 4. It has also been pleaded by the learned advocate for the appellant that the reliance placed....

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....early states that the truck was "at the weigh-bridge near the gate". I also observe that the learned adjudicating authority has nowhere found that the truck was outside the factory gate. His finding has been on the basis of Commercial Manager's statement alone without consideration of the panchnama, that the truck was near the gate; this shows that the truck was well within the factory inside the exit gate. In this factual position, there is no contravention of any Central Excise Rules. Contravention of Rule 9(1) as upheld in the adjudication order does not follow because the goods in the first instance had been stored in an approved storeroom under Rule 47 in terms of 1st proviso to Rule 1. Prima-facie one may argue, duty is required to be....