TaxTMI 
TaxTMI 
2008 (9) TMI 522
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....oof was not shifted on the assessee? 2. The brief facts giving rise to this petition are that the H.P. Police seized 822 cylinders from the godowns of respondent No. 1-Company. During the investigation, the police seized various records from Taruwala Municipal Barrier and the Police Barrier at Behral and Kala Amb. On investigation, the police found that the respondent No. 1-Company had cleared 53 trucks carrying cylinders or scrap from the factory premises without any excise documents during the period 1986 to 1992. Thereafter the Excise Department took up the matter. It obtained copies of the documents from the police including the abstract of the records of the barriers. The Director of the respondent Company was questioned who admitte....
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....hey always carried the relevant documents but could not say whether these documents were correct or not. These witnesses also stated that many times cylinders were unloaded at many places out side Himachal Pradesh. A number of other witnesses including the employees of the respondent-company were examined. The department also examined the record of the company to prove that about 71.770 metric tonnes steel used in the manufacture of cylinders have been clandestinely imported in H.P. by the respondent-company. 5. The Collector On the basis of the material before him, finally held as follows :- "The department has brought on record overwhelming evidence for proving its case against the Noticees. Even when the department is not required ....
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....ded in the show cause notice. Therefore, I pass the following :" 6. The respondent-Company filed an appeal before the Custom, Excise & Gold (Control) Appellate Tribunal (CEGAT). The Tribunal accepted the appeal. The main reason which weighed with the Tribunal was that there was no material on record to prove that 400 cylinders were being carried in the trucks every time they crossed the barriers. The statement of Ram Bilas Choudhary was not relied upon since according to the Tribunal the same may be biased. In respect of the statements of Sarwan Singh and Sukhdev Singh, the Tribunal only stated that there seems to be some contradictions in their statements. The Tribunal also placed heavy reliance on the fact that the department had faile....
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.... what was being carried in the trucks. 8. Admittedly, the entries in the barriers clearly show that on these trips either scrap or empty cylinders or LPG cylinders were being carried. These entries clearly show that this material was being carried in the trucks. There is a presumption of truth attached to official records maintained during the ordinary course of business. It is also come in evidence that the persons at the barriers used to verify the nature of goods being carried in the trucks. Therefore, though the quantity of goods being carried in the trucks may not be proved on record by the entries made in the record of the barriers but the fact remains that the identity or type of goods being carried in the trucks is proved by the ....
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....ks crossed the barriers carrying some cylinders for which no record was maintained in the factory nor any excise duty was paid then the presumption can be drawn that the trucks were carrying cylinders as per the capacity of the trucks. The approach of the Tribunal that it was for the department to prove what was the quantity of goods carried in each truck which crossed the barrier and of which there is no entry in the records of the Company is totally illegal. Once the illegal activity was proved, the burden shifted upon the assessee. 11. No law can be interpreted in a manner so as to give premium to illegal and criminal activities. It is a basic common sense that no person will maintain authentic records of the illegal activities or man....