TaxTMI 
TaxTMI 
2017 (5) TMI 949
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....hority confirmed the demand on the charge of clandestine removal of goods, consequently, the demand was confirmed. The said order was challenged by the respondent before the Ld. Commissioner (Appeals) who set aside the adjudication order by dropping the charge. Aggrieved from the said order, the Revenue is before me. 3. The Ld. AR submits that Sh. Jagdish Dogra has admitted that on the direction of the director, they have cleared the goods on the strength of parallel invoices and the transporter Sh. Munish Verma has confirmed the existence the chain of action resulting in clandestine removals of the goods. Further Sh. Munish Verma put his signature having seen read and admitted the removal of goods on parallel invoices. He further submitted that the Revenue is not required to complete the full chain of omission in the case of fraudulent case as held by Apex Court in the case of D. Bhoornull 1983 (13) ELT 1546 (SC). Therefore, the impugned order is to be set aside. 4. None appeared on the behalf of the respondent nor any request for adjournment has been received. The matter was come up for several time before this Tribunal, therefore, matter is taken up for final disposal. 5. I f....
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....t of the alleged clandestine removals as detailed in annexure A and B to the show cause notice, before the adjudicating authority who had not considered the same on the ground of the dubious nature of working of the appellants. They are relying upon several judgments and submit that as per those judgments, the charge of clandestine removals against them is not proved. 5. As per facts of the case, the diary/cash ledgers were recovered from the appellant s unit. After verification the departmental officers have identified 27 entries which are being attributed to clandestine removals of 277.950 MTs of finished goods. These 27 entries were picked out of over 200 entries noted in the diary/ledger. As per facts of the case there was no admission by any person that the quantities relating to the 27 entries had been removed without payment of duty. Similarly of quantity of 96.620 MT + 12.040 MT of the finished goods as per 9 entries figuring in the transport register of the transport company has been alleged to have been clandestinely removed. The transporters while explaining the entries contained in the said registers have not admitted that they have transported the goods from the app....
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....h units as in the case of A. Rathinam, Prop., Michael Match Works v. CCE[1992 (60) E.L.T. 451. The Tribunal examined the issue of clubbing of 8 match industries situated in the same compound and having a common trading agent. On a detailed examination of the evidences, the Tribunal set aside the order of the Commissioner, Central Excise by applying the ratio of earlier judgment rendered in similar match work cases as in the case of Premier Matches v. CCE [1991 (51) E.L.T. 377; Vasuki Match works v. CCE (1990 (49) E.L.T. 415]; and Sekhar Match Industries v. CCE [1990 (48) E.L.T. 599]. There are a number of similar cases on similar issue, which have come up for consideration and similar ratio has been followed. The finding given by the Tribunal on this point has not been upset by any other judgment. The Tribunal in the case of Calicut Rubber Works [1996 (81) E.L.T. 320] and in the case of Krishna Bottlers [1999(32)RLT 845] has also taken a similar view and have applied the judgment rendered in the case of Kashmir Vanaspati case to set aside the allegation of clandestine removal. It has also been held in the case of Bharat Containers (Nagpur) Pvt. Ltd.v. CCE[1999 (113) E.L.T. 992] tha....
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....d on the basis of entries of diary/cash ledger and transporter registers. In the case of Utkal Polyweave Industry Pvt. Ltd. Vs. CCE Bhuvneshwar 2001 (136) ELT 520 (Tri. Kolkata) the Hon'ble CESTAT while dealing with evidence of clandestine removal has held as under: "Clandestine removal Evidence Issue notes by assessee in the shape of directions to their staff to supply a particular quantity which may not be cleared under one gate pass on one day Hence particulars therein may not tally with Central Excise records No adverse conclusion can be drawn based upon the sole entries made in the said issue notes Rules 9(2) and 173Q of Central Excise Rules, 1944. [para 15} Clandestine removal Motive Raw material purchased on payment of duty and modvat claimed Buyer of final product, majority of being Government of India Undertakings, insisting on payment of duty so as to claim Modvat credit No motive for assessee to indulge in clandestine removal Rules 9(2) and 173Q of Central Excise Rules, 1944. [para 15] Clandestine removal Evidence Private records Mere seizure of private books maintained by staff for internal movement of the goods or carrying out directions for clearance of the goo....
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....andestine removal. In the present case, the Commissioner has scrutinized the entries made in the note book and found that in the note book there are entries made with regard to goods cleared under the invoices and also with regard to amounts received from them. He has also noted that there is no deletion made in the note book in respect of goods despatched under proper invoices.[para 6] Clandestine removal Accounts, Records and Returns Private Parcel Note Book Evidence, Statement, cross-examination Implicatory statement of Assessee Company s Accountant admitting entries in Private Notes book represented despatches of both accounted and unaccounted goods not conclusive evidence to prove clandestine removal when, out of 65 customers to whom goods despatched, only 5 examined, out of whom two customers retracted their statements, two others absented from cross-examination, and one customer stated goods received on invoices Section 11A of Central Excise Act, 1944 and Rule 173Q of erstwhile Central Excise Rules, 1944. In a circumstances like this, it is not possible to hold that Revenue has produced sufficient evidence with regard to manufacture and clearance of goods clandestinely. Re....