TaxTMI 
TaxTMI 
2016 (11) TMI 1100
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....powder & Cake. They were issued show cause notice dt. 23.04.2003 alleging clandestine removal of final product by M/s Shivani Detergents. It was alleged that the Appellant has removed consignments to Maharashtra through M/s ARCO Transport without payment of duty. That in certain consignments, where the name of the consignor was mentioned as same , were cleared through M/s ARCO MP Freight Carriers, without payment of duty. That such clearances were made as instructed by Shri Mahesh Karmbelkar, who is an employee of M/s Shivani and was looking after marketing. The sale proceeds were received in bank account of Shri Mahesh Karmbelkar. Reliance was placed upon the statement of the transporter, who stated that in case of LRs where the consignor name is shown as same , the goods were sargam brand detergent powder and soap. The show cause notice stated that investigation was made at some places in Maharashtra and statement of 5 buyers were recorded, wherein they stated that they have purchased Sargam Brand Detergent from Shri Mahesh Karmbelkar. The SCN also relied on statement dt. 26.10.2002 of Shri Mahesh Karambelkar and Shri Omprakash Bagani, director of Appellant, which shows tha....
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....e goods of Appellant Unit. That obviously these are the goods which were transferred by M/s Shivani to their office at Indore and then sold to the parties in Maharashtra. The Commissioner (Appeals) observed that since the value of goods, mentioned in LRs is more than the cash sales made by M/s Dolphin Marketing, or that the goods were transported at the time when there was no sale by M/s Dolphin Marketing, it shows that the goods were cleared clandestinely by the Appellant firm. The Commissioner (Appeals) thus rejected the appeal filed by Appellants. Hence, this present appeal before this Tribunal. 5.1 The Ld. Counsel for the Appellant submits that the only basis for demanding duty from the Appellant is the statement of the transporter M/s ARCO transport, who stated that in case of LRs, where the consignor name was stated as Same , the goods were of the Appellant firm and that the amount appearing in bank accounts of Shri Mahesh Karambelkar, is the sale proceeds of goods, cleared clandestinely by the Appellant firm. That as far as allegation of clandestine clearances is concerned, the Commissioner (Appeals) has compared the sales made by Appellant to M/s Dolphin Marketing with t....
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..../s Shivani. 5.2 He submits that the show cause notice is issued with the assumption that M/s Dolphin was not authorized to sell the goods outside Madhya Pradesh, which is absolutely baseless, as there is no evidence or statement of any person to suggest that M/s Dolphin is not authorized to sell the goods outside Madhya Pradesh. That though it has not been disputed by either of the lower authorities that Shri Mahesh karambelkar is not the employee of M/s Shivani, still it was held that he was closely associated with M/s Shivani. That Shri Mahesh Karambelkar was not put to any question as to whether the amount received in his bank accounts relates to the sale proceeds of goods, alleged to have been cleared without payment of duty. 5.3 The Ld. Counsel submits that it is the main allegation in the show cause notice that the goods transported through M/s ARCO, showing the name of consignor as Same , were goods cleared clandestinely by the Appellant firm, but nowhere any evidence is appearing as to how such goods were cleared from the Appellant s factory at Pithampur and transported to Indore, which is located 30 kms away. That nowhere the bank accounts of Shri Mahesh Karambelkar ....
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.... amount from the bank account of Shri Karambelkar was withdrawn by some other person, it does not support revenue s allegation. That the show cause notice does not show any nexus between Appellant unit and Shri Karmbelkar. No evidence is available with the Department that buyers purchased goods from the Appellant firm without invoices. Whenever the goods were transported by Appellant firm through M/s ARCO Transport, the name of Appellant firm was clearly mentioned on the transport documents. He submits that thus the demand and penalties against the Appellants is not sustainable as no goods were removed without payment of duty. He also submits that the redemption fine of Rs. 5,000/- has wrongly been imposed as there is no evidence that the same was kept with an intention to remove the same without payment of duty. 6. Per contra, the Ld. A.R. Mr. Dharam Singh appearing for the Respondent reiterated the findings recorded in the impugned order to justify confirmation of the duty demand and imposition of penalty. 7. I have perused the appeal papers and heard the submissions of both the sides. I find that the allegation was made against the Appellant on the ground that Shri M....