TaxTMI 
TaxTMI 
2009 (8) TMI 1008
X X X X Extracts X X X X
X X X X Extracts X X X X
....e physical stock of yarn in the presence of Shri K. Sudhakaran, posted in the factory and attending to work relating to clearance of cotton yarn. The physical stock was ascertained in the presence of Shri Sudhakaran and two other witnesses. On 10-3-2003, the officers visited the administrative office of the assessee and a godown situated away from the factory. They were also shown the registers which were not available in the factory on 6-3-2003. On perusal of the relevant registers, it transpired that the physical stock was short by a total 6,450 kgs. in various counts. A quantity of 1324.6 kgs. of cotton yarn found in the godown was detained as its legal clearance was not supported by documents. Statements were recorded from Shri K. Sudha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on account of clandestine clearances was found in respect of three quantities of cotton yarn viz. 27168 kgs. cleared during 26-4-2002 to 21-12-2002; 30576 kgs. of cotton yarn cleared during 14-6-2002 to 17-2-2003 and 6450 kgs. of cotton yarn cleared on 1-7-2002, 20-7-2002 and 29-1-2003. The entire demand was based on gate keeper's notebooks and gate passes recovered from him. In respect of the three quantities involved, the period of clearances overlapped. The impugned clearances were covered by each of the three periods. Apparently, demand had been raised based on various sources. No such records were maintained with the permission of the Managing Director. The gate keeper was not competent to maintain gate passes or any other registers. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consumption of raw materials etc. As regards the shortage of 6450 kgs. of cotton yarn, this quantity was defective cheese yarn received back, which was available in the factory. The impugned order therefore deserved to be set aside. 7. During the hearing, the ld. Counsel withdrew the challenge to the orders relating to confiscation of 1352.6 kgs. of yarn recovered from the godown of the assessee. 8. I have also heard the ld. SDR, who has drawn my attention to a file containing records of comparison of particulars of production and the corresponding details furnished in the returns submitted to the department during the material period. 9. I have carefully considered the case records and the submissions by both sides. On the date o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ances covered by the Central Excise invoices were of a higher quantity compared to the corresponding quantity covered by the gate passes has not been rebutted in the proceedings by the authorities. Obviously, gate passes are not reliable documents to determine the actual quantity of cotton yarn removed by the appellants during the material period. The duty demand arises on account of the absence of Central Excise invoices corresponding to gate passes and excess quantity reflected in the gate passes corresponding to the respective Central Excise invoices. As rightly argued by the appellants, the demand is raised in respect of the clearances in three different spells. These periods overlapped. It has to be held that the authorities relied on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and clearing goods without payment of duty owing to financial difficulties. The following table shows the power consumption during the material period. Month Production of cheese yarn (kgs.) Electricity consumed (in units) Per tonne consumption of electricity (in units) 4/2000 53813 59710 1109.58 5/2000 59913 6653 1110.51 6/2000 61178 72212 118.36 7/2000 63103 76140 1206.6 8/2000 62423 72292 1158.1 9/2000 53103 64356 1211.91 10/2000 58495 69872 1194.45 11/2000 61374 72176 1176 12/2000 59427.5 71550 1203.99 1/2001 66744.5 76124 1140.53 2/2001 60999 71576 1173.4 3/2001 65636 74066 112....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case of Kirtibhai Maganbhai Patel v. CCE, Nagpur reported in 2003 (159) E.L.T. 1162 (Tri. Mumbai), has held that entries in the register alone are not sufficient to establish the charge of clandestine manufacture and clearance of the goods. To the similar effect are the other decisions of the Tribunal. Particular reference may be made to the Tribunal's decision in the case of Durga Trading Company v. CCE, Lucknow reported in 2002 (148) E.L.T. 967 (Tri.-Del.), as confirmed by the Hon'ble Supreme Court, while dismissing the appeal filed by the Revenue as reported in 2003 (157) E.L.T. A315 (S.C.)." 12. In Kirtibhai Maganbhai Patel v. CCE, Nagpur - 2003 (159) E.L.T. 1162 (Tri.-Mumbai), it was held that clandestine removal justifying the dema....