TaxTMI 
TaxTMI 
1998 (10) TMI 271
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....aga Mills and M/s. Sakthi Vinayaga Bleachers, and when they were clearing the goods on payment of duty they had used the invoices of M/s. Sasidhara Dyers, Erode. The appellants categorically admitted that the seized records reflected the daily production of dyed cotton fabrics that were processed at M/s. Sasidhara Dyers (M/s. SD) and cleared without payment of duty. It was therefore, alleged that M/s. Sasidhara Dyers had deliberately suppressed the production of processed dyed fabrics and cleared the same without payment of duty on the bills, in the name of M/s. Vinayaka Mills and M/s. Sakthi Vinayaka Bleachers. A quantity of 2100 L.Mtrs., of dyed cotton fabrics not accounted for in the records was also seized. By the above impugned order t....
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.... not admissible in evidence. The officers had not visited the other two units and had not conducted any enquiry in spite of being mentioned. In the instant case there was no corroborative evidence and the Department had merely relied upon the statement of Shri Sampath. The note book was maintained by the casual labourers and therefore, the entries of production mentioned in that book could not be relied upon to establish clandestine removal unless supported by other independent evidence. They further submitted that even if there was some duty liability, it had to be treated as cum-duty price and therefore, under Section 4(4)(d)(ii) duty payable should be deducted from the value. Regarding the imposition of penalty they submitted that since ....
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....Bleachers were actually received by the buyers or not. No independent evidence has been brought on record to establish that the goods alleged to have been cleared clandestinely were received by the buyers. In the absence of such an investigation and evidence on record it cannot be proved beyond doubt that the appellant had cleared the processed cotton fabrics without payment of duty. In this connection, I rely upon the Tribunal Order in the case of K.R. Steel Union Pvt. Ltd., [1987 (31) E.L.T. 375] wherein the Tribunal has held that in the case of clandestine removal the burden of proof has to be established by the Department. It is seen that the lower authority has come to the conclusion that they had cleared the cotton fabrics without pay....
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.... proof of clandestine removal, duty cannot be demanded. 4. As regards confiscation of 2100 L.Mtrs of dyed cotton fabrics which was seized, the said goods were lying within the factory premises and had not been cleared outside the factory. Therefore, there was no intention to evade payment of duty. The Hon'ble Tribunal in the case of M/s. Pooja Forge [1996 (84) E.L.T. 37] has held that in the case of goods still lying in the finishing room and no attempt was made to remove them clandestinely, confiscation and imposition of fine was not justified. Similarly the Tribunal in the case of New Polymer Industries [1991 (52) E.L.T. 145] has held that if no clandestine removal of the goods was involved, seizure was not justified. In the case of....