TMI Blog2014 (6) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... parallel invoices were later destroyed. As per provisions of Sec. 36A of the Central Excise Act, the presumption is that the note book is 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 - Following decision of Montex Dyg. & Ptg. Works Vs. Commissioner of Central Excise & Customs [2006 (11) TMI 376 - CESTAT, AHMEDABAD] - Decided in favour of Revenue. - Appeal No. : E/25/2007 SM - ORDER No. A/10836/2014 - Dated:- 11-4-2014 - Mr. H.K. Thakur, J. For the Appellant : Shri Alok Srivastava (AR) JUDGEMENT Per : Mr. H K Thakur; The present appeal, filed by the Revenue, is directed against the Order in Appeal No.167/ 2006 (Ahd-III) CE/ DK/ Commr (A) dated 29.09.2006, passed by the Commissioner (Appeals-II), Central Excise, Ahmedabad. 2. Briefly stated the facts of the case are that the Preventive Officers intercepted one truck carryin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices either used to be taken back by the respondent or used to be destroyed by them after the goods were received. One buyer, M/s Mahalakshmi Sales Agency, while admitting receipt of goods under invoices number 132/ 31.12.2004, 147/ 11.01.2004, 148/ 19.01.2004, 156/ 30.01.2004, and 161/ 15.02.2004, stated that the consignees mentioned the said invoices available with them were for M/s Supreme Packaging, M/s Bhoomi Packaging, M/s Maruti Packaging and M/s Parshwa Print Pack Private Limited respectively. The Duplex Board, valued at Rs. 1,13,601/-, loaded on the intercepted truck, involving central excise duty of Rs. 18,176/- plus Cess Rs. 142/-, was seized along with the truck valued at Rs. 3,00,000/-. The Revenue worked out demand of excise duty of Rs. 16,12,463/- plus Cess Rs. 12,598/- for the period from January, 2004 to March, 2004 on the basis of clandestine removal of excisable goods ascertained form the note book coupled with the corroborative evidence and statements narrated above. After due process of adjudication, the original adjudicating authority dropped the proceedings of the show cause notice relating to demand of duty of Rs. 16, 12, 463/- plus Cess Rs. 12,598/- on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited - [2000 (120) ELT 280 (SC)]; (iii) Commissioner of Central Excise Vs. Anjaneya Steel Rolling Mills - [2005 (185) ELT 158 (Tri. Chennai)]; (iv) M.R. Tobacco Private Limited Vs. Commissioner of Central Excise, Delhi - [2006 (202) ELT 64 (Tri. Del.)]; (v) M. R. Tobacco Private Limited Vs. Union of India - [2008 (228) ELT 171 (Del.)]; (vi) Karnataka Ginning Pressing Factory Vs. Commissioner of Central Excise, Mumbai - [2006 (204) ELT 156 ( Tri. Mumbai); (vii) Montex Dyg. Ptg. Works Vs. Commissioner of Central Excise Cus., Surat-I - [2007 (208) ELT 536 (Tri. Ahmd.); (viii) Devi Dass Garg Vs. Commissioner of Central Excise, Delhi-I [2010 (257) ELT 289 (Tri. Del.)]; (ix) Surjeet Singh Chhabra Vs. Union of India - [1997 (89) ELT 646 (SC)]; (x) Commissioner of Central Excise, Madras Vs. Systems Components Pvt. Ltd. - [2004 (165) ELT 136 (SC)]; (xi) Ludhiana Food Products Vs. Collector of Central Excise - [1989 (43) ELT 648 (Tribunal)]; (xii) Commissioner of Central Excise, Mumbai Vs. Kalvert Foods India Pvt. Ltd. - [2011 (270) ELT 643 (S.C.); and (xiii) Naresh J. Sukhawani Vs. Union of India - [1996 (83) ELT 258 (S.C.)]. 4. None appeared on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory premises of the respondent, seizure of illicitly removed excisable goods under the duplicate invoice number 173 dated 20.03.2004 during road patrolling on 20.03.2004, and recovery of a note book containing details of clandestinely removed goods are sufficient indicators of the clandestine clearances being made by the respondent. Not only this, the investigations conducted from the buyers of illicitly removed goods namely M/s Luckey Packaging Industries, M/s Tejas Packaging, and M/s Reliance Packaging (as mentioned in the note book), revealed that those parties have received the Duplex Board illicitly removed by the respondent under the cover of invoices mentioned in the note book. They also admitted that the invoices either used to be taken back by the respondent or used to be destroyed by them after the goods reached the consignee. One buyer, M/s Mahalakshmi Sales Agency, while admitting receipt of goods under invoices number 132/ 31.12.2004, 147/ 11.01.2004, 148/ 19.01.2004, 156/ 30.01.2004, and 161/ 15.02.2004, stated that the consignees mentioned the said invoices available with them were M/s Supreme Packaging, M/s Bhoomi Packaging, M/s Maruti Packaging and M/s Parsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted fact need not be proved. Finding no infirmity in the impugned order, we are inclined to go by the reasoning and findings as contained in the impugned order. At this stage of dictation of the present order, the learned counsel interprets and pleads for leniency in the penalty imposed by the authority below as he had invoked the provisions of Section 11AC and imposed a heavy penalty which is equivalent to the duty demanded. We, however, on considering the facts and circumstances of the matter find that there is no warrant for interfering with the impugned order in any way as the penalty imposed is commensurate to the nature of offence. Both the appeals are, therefore, dismissed. The above decision of the Tribunal has been approved by the Honble Delhi High Court as reported in 2008 (228) ELT 171 (Del.). 5.1 Further, in the case of Karnataka Ginning Pressing Factory Vs. Commissioner of Central Excise, Mumbai - [2006 (204) ELT 156 (Tri. Mumbai)], interalia, in para 3 as follows :- 3. .. The appellants are only concerned with the confirmation of duty of Rs. 11,78,032/- and penalty under Sec. 11AC and penalty under Rule 173Q(1). This duty demand was based on note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing grey fabrics to M/s. Montex Dyeing Printing Works on the basis of katchcha challans and receiving back the processed fabrics without the cover of Central Excise invoices. As such, we find that the Revenue has been able to discharge its burden to prove clandestine manufacture and removal of excisable goods. The appellants claim that corroboration in the shape of installed capacity, electricity consumption, labour employeed etc., has not come on record, does not convince us inasmuch as it is the sufficiency of evidences on record which has to be considered and the Revenue cannot be expected to prove its case by producing direct evidence which would rarely be forthcoming. It is not necessary that the case of the clandestine removal must always be proved by referring to electricity consumption or installed capacity or labour employeed etc. In the present case, we find that M/s. Montex Dyeing Printing Works is not disputing the recovery of challans/note books from its premises. The said entries finds sufficient corroboration in the shape of the statement of the partner and the merchant- manufacturer, which we have dealt in details in the preceding paragraph. As such, we hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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