TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 1020
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....rification a shortage of 29.775 Mts was also found. The proprietor of the Unit accepted maintenance of note books and second set of invoice. Shri Kuldeep Saini in his statement dated 18.01.2012 stated that the note books recovered from them were maintained as per instructions of Shri Shiv Narayan Sharma, Proprietor, to enter daily production and details and it reflects actual production and clearances of finished goods and the details recorded in RG-1 register are not correct; un-numbered invoice book is being used for clearing unaccounted goods to evade payment of excise duty. Statement of Shri Bhomi Vasuna, proprietor of M/s Bharat Dharam Kanta was recorded on 28.8.2012, who stated that they weigh the material of the appellant on credit basis, which is received in their own lorry bearing Regn. No.AP 22B-2324 or in any other lorries. In case of other lorries, the security personal of the appellant were accompanied the lorries and they maintain a long note book for the weighments made. On verification of the notebooks, it was found that the details of production and clearances are in excess of the entries made in RG-1 register. 2.1 That on examination of the electrical power consu....
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....tigation was conducted at the end of the alleged buyers who have been purchased alleged clandestinely cleared goods. The officers relied upon the entries made in the note books but did not investigate the matter further to establish whether there was procurement of raw material and sale / dispatch of finished goods by the Appellant. The main raw material of the Appellant is MS Ingots & Billets, which are procured from big Ingots & Billet factories and transportation has to be done through lorries. During the course of travel, the lorries pass through a number of state operated check-posts. The Department has not shown any procurement of excess raw material by the Appellant except relying upon the entries in the note books and statement of employees of the appellant company. He relied upon the judgment in case of CCE, Haldia v/s Lord's Chemicals Ltd - 2010 (278) E.L.T. 48 (Cal) in support of his statement to support his contention. He submits that the four invoices of the second set were prepared with fake information by the employee without any knowledge on part of Appellant. The investigation did not bring-out or establish any removal/ transportation of the goods nor receipt o....
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....ted from any of the alleged buyer to ascertain as to whether the Appellant has cleared any goods to them nor the details of raw material allege to have been received by the Appellant was verified from the alleged supplier of raw material. That eventhough the scn has stated numbers of vehicles used for transportation but no statement of transporter or their records has been relied upon. That in absence of any records/ statement of any raw material supplier or finished goods buyer and corroborative evidences in the form of transporter, payment of freight, amount alleged to have been received towards clandestine removal of goods. Hence the demand is not sustainable. 6. Ld. Departmental Representative on the other hand reiterates the allegation made in show cause notice and relies upon the findings of the impugned order. 7. I have considered the submissions made by both sides and perused the records. 8. I find that the demand is based upon the private note book and invoice books recovered from the room of Shri Kuldeep Saini, the Supervisor of the Appellant Company. Further that the Proprietor of the Appellant Unit in his statement alleged to have accepted the clearances of goods men....
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....dgments to say that entries made in the private note book cannot be considered as conclusive proof of manufacture and clearance of goods clandestinely. He referred to the judgment of this Bench rendered in the case of Krishna Bottler - 1999 (32) RLT 845. He submits that this judgment has clearly laid down that private note books cannot be relied unless it is fully corroborated. He submits that this judgment is based on large number of judgments including the Apex Court judgment rendered in the case of Triveni Plastics - 1994 (73) E.L.T. 7 (S.C.); Oudh Sugar Mills v. UOI, 1978 (2) E.L.T. J (172). He has also filed copies of large number of citations to prove the point in support of the judgments given by the Commissioner." 6. I have carefully considered the submissions made. As has been held in large number of judgments of the Tribunal based on the Apex Court judgment that the Revenue is required to prove the charge of clandestine removal with cogent and sufficient, corroborative evidence. It has also been now well laid down that mere entries made in the private note book are not sufficient to hold the charge of clandestine removal. In the present case, the Commissioner has scrutin....
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....T. 187, the Tribunal held as under. "6. We have carefully considered the submission and perused the impugned order. Insofar as the assessee's appeal is concerned, we notice from the extracted portion of the Commissioner's order that Revenue is solely relying on the exercise note books mainly balance sheets. The Tribunal in large number of cases which have already been noted above in the tabulated list of citations furnished by the Counsel has held that unless there is clinching evidence on the nature of purchase of raw materials, use of electricity, sale, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of note books maintained by some workers. The facts in the case of Aswin Vanaspati Industries would be identical to the facts herein as in that case also the allegation was with regard to removal of Vanaspati based on the inputs maintained. The Tribunal went in great detail and have clearly laid down that unless department produces evidence, which should be clinching, in the nature of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. A similar view was expressed by th....