TMI Blog2014 (6) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient evidence to prove clandestine removal because advertisement is a market development programme and the sales in the territory assigned to the Appellant in an year (even if a part of the sale was not made by him) is a factor from which Appellant stand to gain in subsequent years - So the case made out without investigating the source of the concentrate or the other inputs like pilfer proof caps to produce the quantity of final products held to be clandestinely manufactured is very weak and we are of the view that the demand confirmed cannot be sustained on the basis of evidence produced - Decided in favour of assessee. - E/2794/2009-EX(DB) - Final Order No. 745/2011-EX(DB) - Dated:- 12-8-2011 - Justice R.M.S. Khandeparkar, President and Shri Mathew John, Member (T) Shri J.P. Kaushik, Advocate, for the Appellant. Shri R.K. Verma, DR, for the Respondent. ORDER This matter relates to a SCN alleging clandestine removal during the period April, 1989 to September, 1993 adjudicated in July, 2009. The initial objections raised by the Appellant regarding the jurisdiction of the adjudicating officer to adjudicate the case was reconciled to the satisfaction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le International Ltd. in his statement dated 20-10-1993 has stated that monthly sales figures are sent by franchisee by telex/fax/telegrams which are in turn confirmed by Sales Manager Report (SMR). Shri C.G. Hedge in his statement dated 12-11-1993 (Annexure A6 to the said notice) has further said that SMR is received by 15th of the month and before this sale figures are sent by franchisee by phone/telex/telegram based on which SMR is prepared. Shri S.M. Dhareshwar, District Franchise Manager in his statement dated 17-11-1993 (Ann A-5 to the said notice) has stated that monthly sale figures are collected from all bottlers on phone, discrepancy in figures is rectified and sales data is reported to Bombay head office by fax/telex/telegram. Shri Ashish Sethi, District Franchise Manager, Delhi in whose jurisdiction the appellant s factory is located, has stated in his statement dated 11-11-1993 (Ann A-7 to the said notice) that he receives/collects sale figures from his franchisees on a monthly basis and reports them to head office on phone/fax, that franchisees communicate sales figures on phone to him and that though format for sales data is prescribed, some bottlers are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Franchise Manager, Delhi having jurisdiction over the appellants in his statement dated 1-11-1993 has said that in case of non-availability of sales figures, occasionally, the sales figures for that month were estimated on the basis of average growth in the neighbouring franchise and the latest sales figures available for the month from the plant. It is obvious that in both the cases, the compiled sales figures would not have represented the correct actual sales of the appellants. (iv) That, in view of the above facts and circumstances and in absence of figures of sales reported in writing by the appellants for all the months covered by the said notice, the sale figures of the appellants obtained from PEL S head office at Mumbai cannot be taken to be authentic and correct. (v) That, it is incorrect, improper and illegal to presume that sale figures of the appellants as compiled by head office of PEL at Bombay for all the months of the long period covered by the said notice, are correct as figures for two months of July, 1991 and October, 1991 as given in SMR have tallied. The grave allegation of clandestine removal cannot be based on such flimsy presumption and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Parle. However, they failed to supply copy of any such report. It is difficult to accept that the figures given on phone were noted down wrongly for all those months. This plea could have been accepted if there was variation in one or two or a few reports. As from the Annexure A-15 to the show cause notice, the figure shown in RG.I were at variance with the sales figures reported to M/s. PEL by M/s. CBC. The figures reflected in RG-I are entirely different when compared to the figures reported to M/s. PEL for the purposes of SMR. It is further observed that the difference in figures could not be attributed to mistake in listening the figures over phone. The figures in SMR and RG-I were not of similar phonetics. Thus, I find the plea taken by M/s. CBC that these figures were wrongly heard over phone is only an afterthought and without any basis. It is also pertinent to note that the figures compiled by M/s. PEL were duly communicated and were in the knowledge of M/s. CBC inasmuch as they were making contribution towards advertisement on the basis of the sales reflected in SMR. As it cannot be accepted that M/s. CBC were not aware or were ignorant about the figures compiled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s resumed from M/s. PEL and it has been admitted that SMR figures were given on monthly basis by M/s. CBC. It is also on record that the contribution for advertisement were made on the basis of figures reflected in SMR and these were never disputed by M/s. CBC. Hence, I find the evidence on record of M/s. Moon Beverages Ltd. was missing which is very much in existence in the case of M/s. CBC. I find that the findings arrived at in the case of M/s. Moon Beverages Ltd. cannot be made applicable to the present case. For the similar reasons, I hold that the decision in the case of M/s. Coolade Beverage Pvt. Ltd. is also not applicable. 9. We have heard arguments on both sides and perused the records. We notice that such discrepancy in sales volume was noticed by PEL and they had investigated the matter to find out whether there was dilution of the concentrate supplied by them to make more bottles of the final products than was permitted by the franchiser. They found no such allegation is maintainable. This is recorded in paras 16.1, 16.2 and 16.3 of the SCN. This is reproduced below : 16.1 Scrutiny of the file No. 36 referred in para 13.2 reveals as under : Parle s Technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar finalized between the PEL and the Appellant. Each year s program shows actual sales figures for the previous years. This is a document signed and accepted by the Appellant. 13. The discrepancy between the sales accounted by PEL for the region assigned to the Appellant and the quantity of goods cleared by Appellant on payment of duty is sought to be explained by two factors. The first factor is the quantity bought by the Appellant from other franchisees and sold in the territory allotted to the Appellant. This factor has been already taken care of in the SCN to the extent the Appellant produced bills. The second issue is the sales stated to be made by PEL directly in the territory assigned to the Appellant. The Appellant had submitted such information on 7-3-1994 as seen recorded in para 17.6.1 of the SCN. This claim is seen in para 30.3 of the adjudication order also. Such sales are acknowledged in Annexure-A-15 of SCN. However the accuracy of such figures are not discussed in SCN or the adjudication order. The mention of this issue in para 38 of the adjudication order is in a skirting manner. Consequently the claim of the Appellant a recorded in para 17.6.1 of SCN is not eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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