TMI Blog1989 (6) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... een machine. The officers recorded the statement of the factory manager Mr. JR Dave on the same day who agreed to the discrepancy and shortage of each of those machines and submitted that there was a possibility of mistake in accounting and making entry in RG1 register and submitted that they would verify the registers and submit their explanation. The appellants vide their letter dated 11-5-1982 submitted their explanation as under: 3. Regarding concrete mixture 10 x 7, they submitted that there were some errors in making entry in the RG1 register and submitted that on 25-4-1981, there was short accounting in RG1 register of 3 machines Nos. 7661 to 7663 covered by Production Report No. 681, dated 25-4-1981. Further on 25-12-1981, there was a totalling mistake of 2 machines in that, instead of the correct total of 21, the incorrect figure of 23 has been shown in Col. 4 of the RG1 register which eventually led to excess accounting of 2 machines in RG1 register. They further submitted that on the same day that is, on 25-12-1981, two machines bearing serial No. 7602 to 7603 which were already accounted for as receipt in RG1 register on 8-11-1981 were again entered as receipt, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and taken by them in their letter dated 11-5-1982. They were given personal hearing. The Additional Collector however vide his impugned order disbelieved the explanation given. As regards the concrete mixture machine 10 x 7, the Additional Collector, while rejecting the same, held that if the explanation was accepted, there would be nil balance on 3-2-1982, 5-2-1982 and 9-2-1982, whereas the record showed that there were clearances on these days. The explanation therefore led to absurdity. He also held that during the budget period, the appellants were required to file declaration after physical verification which they had done and there was no discrepancy in the stock noticed. As regards concrete mixture machine 14 x 10, the Additional Collector rejected the explanation of the appellants. He held that if the explanation was accepted, there would be nil balance on many days during January 1982 and February 1982, which could have been noticed by the party, particularly during the budget period when they had filed the declaration and the same had been verified by the Supdt. Regarding Jaw crusher, the Additional Collector held that the explanation appeared baseless, as it was evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny evidence on the part of the department to show that the explanation submitted by the appellants was not probable, no duty could be demanded nor the penalty imposed. In support of his contention, he relied upon the decision of the Supreme Court in the case ofAmba Lal v. Union of India and Others reported in 1983 (13) E.L.T. 1321 (SC) and also the decision of the Madras High Court in the case of B. Lakshmichand v. Government of India reported in 1983 (12) E.L.T. 322 (Mad.), the decision of the Kerala High Court in the case of M, Kayakutty, Kayamkulam v. Collector of Customs and Central Excise, Cochin and Ors, reported in 1978 (2) E.L.T. (J494) and the judgment of the Calcutta High court in the case of Harchand v. Additional Collector of Customs, Calcutta and Ors. reported in 1981 (8) E.L.T. 699 (Cal). He also cited the judgment of the CEGAT, North Regional Bench, reported in 1983 ECR 1727D (CEGAT) and submitted that mere suspicion cannot take the place of circumstancial evidence. 9. He also submitted that the order of the Additional Collector is therefore bad in law and it is required to be set aside. 10. He submitted that there is no malafide on the part of the appellants. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, the appellants have produced the production report No. 681 dated 25-4-1981 and have shown that no corresponding entry is made in RG1 register. This evidence, in itself, may not have been enough to remove the doubt regarding the genuineness of the said Production Report, but here the appellants have also produced copy of GP1 No. 1186 and 1189 dated 20-5-1981, showing that three machines No. 7661,7662 and 7663 have been taken out of the factory under a valid Gate Pass. These very numbers appear in Production Report No. 681. The department has not brought out anything to show that these three machines were duly entered in RG1 register elsewhere. 16. This explanation is rejected by the Additional Collector, on the ground that, if explanation was accepted, there would be nil balance on 3-2-1982, 5-2-1982 and 9-2-1982, whereas the record showed that there were clearances on these days. The Additional Collector has not elaborated his reasonings. The appellants have challenged the same, by pleading that the calculation made and conclusion drawn were erroneous. When the errors pleaded are apparent on record, calling for no further investigations or detailed scrutiny of the record, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irresponsible and negligence in maintaining RGl register, it is just probable, that they may not have, noticed this discrepancy also. 19. As regards Jaw Crusher Machine also, there has been a double entry for machine Sr No. 153, once on 12-9-1978 vide Production Report No. 415 and again on 23-3-1979, vide Production Report No. 240. This is clearly apparent from the records. The Additional Collector has rejected the same on the ground that all machines manufactured before 13-12-1978 were cleared out and there was no balance between 13-12-1978 and 19-12-1978. When the explanation in the form of documentary evidence was produced by the appellants, the Additional Collector ought to have called for further clarification, if further discrepancy was noticed. This could have made the position clear, either for the appellants to prove their innocence or for the department to bring home the charges. 20. The explanation regarding Rotary Screen machine is that the machine produced was subsequently fitted in Crushing Plant, but debit entry was not made in RGl register. The Additional Collector has rejected the same on the ground that size of Rotary Screen Machine, entered in RGl r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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