TMI Blog2012 (2) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... it needs further corroboration. The lower adjudicating authority has wrongly considered and appreciated the statement, dated 1-8-2008 of drivers, who deviated from their previous statement. Merely gross resemblance in distance and time taken in travelling to reach the loading place would not be incriminatory fact in absence of its specific and tangible corroboration. Non-production of duty-paying document is not at all incriminatory fact on their part. Hence I hold that seized 29.99 MT MS bars is not liable for confiscation nor trader and its proprietor are liable for penalty U/s 11AC of the C. Ex. Act, 1944 read with Rule 25 & 26 of the Central Excise Rules. Moreover, in view of the discussion as above, as Demand of Central Excise Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered under Tax Invoices No. S00946 and No. S00947 both dated 19-7-2008 issued by M/s. Durga Rai Vijay Kumar, Samaur bazaar, Kushinagar, U.P. On a follow up enquiry under reasonable belief the goods and vehicle were placed under seizure and proceedings were initiated against M/s. J.M.D. Alloys Ltd., Sri Sanjoy Gupta, M/s. Durga Rai Vijay Kr., Sri Vijay Kr. Rai, Sri Shiv Kumar, Shri Rajendra Prasad and M/s. Sona Carrying Corpn. The adjudicating authority confirmed the proceedings vide his order. Aggrieved by the same the respondent challenged the order before Commr. (Appeal). The Commr. (Appeal) set aside the lower adjudicating authority s order and allowed the appeal hence Revenue is in appeal. 4. Heard the ld. A.R. None present for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. I find that their second interrogatory statement is in complete contradiction of their first interrogatory statement and their third interrogatory statement is a complete contradiction of their second interrogatory statement. Undoubtedly the statement made U/s 14 of the Central Excise Act, 1944, has an evidentiary value, but if there is any contradiction among them, it needs further corroboration. The lower adjudicating authority has wrongly considered and appreciated the statement, dated 1-8-2008 of drivers, who deviated from their previous statement. Merely gross resemblance in distance and time taken in travelling to reach the loading place would not be incriminatory fact in absence of its specific and tangible corroboration. In ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s contention to the effect that MS-bars in seizure cannot be said to be from records maintained by him in as much as there is no corroboration of the contradictory statement of alleged accomplices on record. Toll receipts of MG-Setu recovered from the trucks may have some probative value for drawing some inference as to crossing of MG-Setu on the day on which it was issued, but it cannot be an evidence for the charge of clandestine removal of excisable in a particular factory. Moreover, while searching the factory premises of M/s. JMD Alloys Ltd., revenue officers did not discover parallel records or did not find any discrepancy in the records maintained by him nor any non-accountal of finished goods or raw material has been discovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UP). It appears that the Appellant Durga Rai Vijay Kumar, Samaur (UP) has purchased some quantity of MS-bar in normal course of business from the seller M/s. Durga Rai Vijay Kumar, Bhagpatti, Gopalganj under invoice No. S00001 dated 14-6-2008 (Qty. 34.00 MT) and invoice No. S0008 dated 8-7-2006 (Qty. 18.00 MT) supported with Sale Tax declaration, who has legally purchased the some part from M/s. JMD Alloys Ltd. under Invoice No. 1008, 20-9-2007 and some part from M/s. Chauri-Chaura Steel Ltd. under their Invoice No. 0001, dated 6-7-2008. M/s. Chauri-Chaura Steel Ltd. had purchased 18.00 MT MS-bars from JMD Alloys Ltd. under Invoice No. 502, dated 4-7-2008. I do not find any reason as to why purchase bill submitted by M/s. Durga Rai Vijay Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable for confiscation nor trader and its proprietor are liable for penalty U/s 11AC of the C. Ex. Act, 1944 read with Rule 25 26 of the Central Excise Rules. Moreover, in view of the discussion as above, as Demand of Central Excise Duty upon seized 29.99 NT MS bars has been found to be unsustainable, the appeals of M/s. Durga Rai Vijay Kumar of Samaur Bazar (UP) and its proprietor succeeds on merit. Hence technical issues, like time bar and jurisdiction of demand notice not being discussed. When the core issue of clandestine removal from JMD factory is not established, the question of confiscation of goods and imposition penalty on the appellants does not arise. Where allegation of violation of Central Excise Act is not establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
