TMI Blog1986 (10) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... t of identity of buyers, quantity and value of the goods etc. It was observed that the total value of clearances of the goods during the period in question amounted to Rs. 4.95 lakhs, so far as the accountal in the excise record went. However, it appeared that the appellants had also manufactured and separately cleared goods of a further value of Rs. 1.60 lakhs during the same period. The total production, therefore, valued over Rs. 5 lakhs disentitling the appellants from exemption from duty being availed of by them under Notifcation No. 71/78, dated 1-3-1978, which was admissible only to manufacturers whose production was within the ceiling of Rs. 5 lakhs in value. It is further alleged that the appellants charged and recovered higher pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of investigation, a number of parties were contacted by the department, but they all denied receipt oof any goods under the cover of parallel invoices. 4. It is also submitted for our information that on the same charges, the Chief Judicial Magistrate, Ahmedabad (Rural) has held the appellants innocent and relieved. 5. In so far as the allegation regarding differences in value of goods is concerned, it is submitted on behalf of the appellants that the difference in value is on account of the secondary packing of the products, which is undertaken only at the request of the customers. The cost of such packing is separately charged and, therefore, is not treated as part of the assessable value. It is submitted that as per Trade Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants have cited the decision of the Supreme Court in the case of Hindustan Steels Ltd., AIR 1970 S.C. 235. 9. Responding, Shri K.C. Sachar refers to Section 36A of the Central Excises Salt Act, 1944 and points out that where any document is seized from the custody of any person, and such document is tendered by the prosecution in evidence against him, the court shall, unless the contrary is proved by such person, presume the truth of the contents of such document. Shri Sachar states that in this matter, the burden of proof is on the appellants to establish that the charges are without basis. This burden, they have not been able to discharge. There is no reason to believe that the so called parallel invoices are not genuine invoices. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty exhorbitant and whether it was worthwhile for him to resort to the stratagem of issuing second set of invoices. Furthermore, the Collector has also observed that there differences in the two sets of the invoices which are not explained. The learned Collector has also noted that the dealers, who are named in the invoices, as having received the goods have denied receiving them, but he has held that it is not the case of the department that the goods covered by the listed invoices were in fact, supplied to the same dealers who had been named. In view of this, the Collector has held that the invoices in question represent different goods clandestinely manufactured and cleared without payment of duty. At the appeal stage also, the plea of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no trace of the goods, nor any evidence that they were actually transported to and received by these dealers. The learned Collector states that it is not the department s case that the goods have gone to the dealers named. On the other hand, the Central Board of Excise Customs has taken a different view and concluded that the modus operandi suggested multiple clearances against single excise gate-passes, obviously to the same dealers. There is no evidence on record to justify these different conclusions by the original and appellate authority. We are inclined to the view that either there were inadequate follow up investigations on the so called duplicate set of invoices seized by the department or that, if such investigations we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such packing should rightly form part of the assessable value. The learned Departmental Representative has stated that the Collector s conclusion in this regard appears not to have been challenged before the Board. This is because, at the time of the hearing of the appeal by us the appellants had not filed a copy of their memorandum of appeal before the Central Board of Excise Customs. In accordance with the directions of the Bench, this was done immediately after the hearing and we find that appellants had challenged the findings of the Collector in this regard. The issue, however, remained undecided at the Board s level. Now, before us, the appellants have cited the Central Board of Excise Customs letter No. Rubber-5/68, dated 14-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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