TaxTMI 
TaxTMI 
2014 (6) TMI 89
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..... During the course of physical verification of finished goods in the respondents factory, a shortage of 15,000 Kg of Ordinary Duplex Board, involving central excise duty of Rs. 21,600/ and Cess Rs. 169/-, was detected, which was admitted by the respondent. During the course of search of the respondent's factory the officers recovered one small note book containing invoice wise particulars of clearances of paper board. On comparing the particulars recorded in the note book with those mentioned in regular invoices of the respondent, the officers noticed that the note book contained details of clearances made by them under regular invoices as well as those made by them to various buyers by repeated use of the same serial number of invoices. The particular of the note book were confronted to Shri Tusharbhai J. Raval, authorized signatory of the respondent, who admitted that the note book contained clearances of Duplex Board without payment of duty under the cover of duplicate invoices, whose particulars appear in the note book. Shri Hiteshbhai J Parmar, Accountant of the Respondent, also admitted that the details contained in the note book mostly pertained to illicit clearances. Shri....
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....9/-, involved on 15,000 Kg of Duplex Board found short, by treating the duty of Rs. 18,176/- plus Cess Rs. 142/-, involved on the seized goods, as a part of duty on goods found short in the respondents factory on 20.03.2004). On appeal by the Revenue, the Commissioner (Appeals) rejected the Revenues appeal upholding the order of the original adjudicating authority vide the impugned Order in Appeal. 3. The Ld. AR Shri Alok Srivastava argued on behalf of the appellant that the Revenue has adduced sufficient corroborative evidence to prove that the respondent had been indulging in evasion of central excise duty by preparing duplicate invoices bearing repeated use of same invoice numbers. It was his case that the seizure of respondents goods in transit on 20.03.2004 under the cover of duplicate invoice number 173 dated 20.03.2004, detection of shortage of 15,000 Kg. of Duplex Board in the respondents factory on 20.03.2004, confessional statements of some of the buyers (whose addresses could be traced by the investigating officers) of the illicitly removed goods, and confessional statements of the respondents authorized signatory as well as the respondents Director Shri Yogehbh....
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....ially admitted to have received the illicitly removed goods from the respondent, out of which 3 parties M/s Parth Packaging, M/s Mandali Packaging, and M/s Parshva Rite Pack Pvt. Ltd. retracted their statements at the time of filing their written replies dated 14.10.2004, 01.02.2005, and 26.03.2005 to the show cause notice respectively. The authorities below held that there was no sufficient evidence to prove the charge of clandestine removal of goods against the respondent, as no enquiries were caused from majority of the buyers, transporters, and drivers of transport vehicles through which the alleged illicit goods were transported. The lower authorities also vacated the seizure of goods valued at Rs. 1,13,601/- by treating the invoice number 173 dated 20.03.2004 as a valid invoice despite availability of pre-authenticated blank invoice number 173 in the respondents factory at the same point of time. 5. Heard Shri Alok Srivastava, AR and perused the records. I find in this case there was recovery of a small note book from the factory premises of the Respondent which has been admitted by the authorized signatory as well as the Director of the respondent factory, to be includin....
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....th sides at length. There is no denial of the fact that ample evidence exists to show the recovery of loose sheets from the premises of the appellants. Though the show cause notice and the order in original refer to them as loose sheets, we find that by referring to the dates and other details contained in them there is a clear continuity interlinking them in a cogent manner. They could have been detached from a note book or exercise book. The continuity is revealed by the running dates starting from 17-1-2002 and ending upto 18-2-2002. We also notice that the starting point in this investigation is the interception of a tempo carrying non-duty paid goods on 19-2-2002. This led to the discovery of the existence of two boras containing contraband and also the recovery of the so-called loose sheets about which the appellants have admitted as goods cleared. In one of the two statements made by the Accountant on 8-5-2002, there is a clear admission that the clearance has taken place in a clandestine manner. It has also been pleaded before us by the learned SDR that while calculating the duty liability, the department has not gone arbitrarily by the production capacity, but by the minut....
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.... a genuine documents and this is further fortified by the admission of the power of attorney holder that the entries therein were made by him. The appellants have not rebutted this presumption. We, therefore, hold that the Department has discharged the onus of establishing clandestine clearances of man made processed fabrics by the appellants. Duty demand, is therefore, sustainable. 5.2 CESTAT in the case of Montex Dyg. & Ptg. Works Vs. Commissioner of Central Excise & Customs - [2007 (208) ELT 536 (Tri. Ahmd,)] also held as follows : 11. No doubt, it is well settled law that the clandestine removal charges are required to be proved by production of sufficient and tangible evidence. However, the appreciation of evidence available in each and every case has to be done in the facts and circumstances of that case only. We find that in the instant case, it is not a case of simplicitor recovery of note books but the corroboration of the same by not only the admission of the partner but the admission of merchant-manufacturers also. Kachcha/pakka challans contained plethora of information as regards the name of the m....