TMI Blog2005 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... he other entries, no material has been brought on record to prove the actual receipt of the raw material by the company from the supplier in a clandestine manner. The Director of the appellant company did not admit the clandestine receipt of the raw material and clearances of the final products without payment of duty. Even the report given by the AC of the Sales Tax Department, vide letter dated 11-5-2000 about the vehicles of the company which crossed their check post, showed the entries tabulated in annexures A and D showing the clearances of the goods, were correct. Regarding the clearances of the goods through parallel invoices Nos. 95 and 96 in a clandestine manner, there is no cogent and convincing evidence on the record. Both these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been directed against the common order-in-original dated 10-3-2004 vide which the adjudicating authority (Commissioner of Central Excise) had confirmed the duty and imposed penalty as detailed therein on the appellants. 2.The appellant No. 1 is a company engaged in the manufacture of aluminium foils, while appellant No. 2 was Director and others were employees of the company, at the relevant time. The duty against the company has been confirmed for having removed the finished goods during the period in dispute i.e. 31-1-1999 to 19-2-2000 in a clandestine manner without payment of duty as well as under the cover of parallel invoices. Some part of the duty amount has been confirmed against the company in respect of the scrap cleared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company was inspected by the Central Excise officers on 19-2-2000 and certain notebooks detailed at Sl. Nos. 1 to 5 of the resumption memo prepared on the date, at the spot, were seized. The entries contained in these notebooks had been tabulated in chart marked Annexure A, to the show cause notice which according to the Revenue, depicted details of clearances in condensed manner during the period in dispute to various buyers and also of the material sent for weighment and the raw material received for the manufacture of the goods during that period by the company. All the entries detailed in Annexure A, had also been shown in Annexure B. The details of the raw material received by the company had been given in Annexure C prepared from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrange the trucks from outside as and when required by the company for transportation of the goods and had been getting Rs. 25/- as commission from the driver of the vehicle. He had nowhere admitted that the goods booked did not accompany the invoices. No statement of any driver of the vehicle had been recorded who transported the goods. Shri Vijaypal Singh himself had no knowledge about the destination at which the goods were sent by the company. 7.From the perusal of the impugned order (para 2.17), it is also evident that entries in the notebook mentioned at Sl. No. 4 of the resumption memo, regarding the clearances of the goods (1897 kgs of aluminium foils) during the period 31-1-1999 to 19-2-2000, were found to be correct as those clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of the raw material and clearances of the final products without payment of duty. The reports obtained from the AC and DC of the concerned area, regarding clearances of the goods by the company to the buyers, during the disputed period, by the adjudicating authority, did not advance the case of the Revenue and even could not be used against the company. These reports were collected at the back of the company and could not be read in evidence without affording to the company an opportunity to challenge the correctness of the same. Secondly, even according to these reports, the goods were supplied by the company against invoices which tallied with the entries made in the notebooks detailed in the resumption memo and tabulated in annexures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been given in the show cause notice nor any evidence has been collected in that regard. The names of the buyers to whom the scrap was sold without payment of duty, had not been disclosed. It is well settled that charge of clandestine manufacture and removal of the goods against any assessee, cannot be based and confirmed on the basis of assumptions and presumption. Such a charge has to be proved by adducing cogent/convincing and tangible evidence. The Revenue in our view, in the instant case, has failed to substantiate this charge against the company and as such, confirmation of duty and imposition of penalty on it, as detailed in the impugned order, cannot be sustained and are set aside. Consequently, the imposition of penalties on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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