TMI Blog1997 (10) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... of Runner and Risers, which was verified in the presence of the said person, it was found that a quantity of 24.406 MT of M.S. Ingots and 12.535 MT of Runner and Risers were found short in stock. A statement was recorded from the said person, who admitted the clearance of M.S. Ingots from the factory gate for the said period and he appears to have admitted the clearances from Headquarters Office (branch transfer basis) without GP 1. He also admitted that the quantity of M.S. Ingots shown in the diary did not tally with the quantity of M.S. Ingots shown in the respective GP 1s, sometimes they had prepared gate pass for less quantity as against the actual quantity removed from the factory as shown in private diary. A chart of clearances of M.S. Ingots/Runners and Risers from the factory as shown in private diary (date-wise) vis-a-vis the quantity shown in GP 1s and also the quantity removed from the factory without issue of GP 1s, without payment of duty was prepared in the presence of the said person. According to the said conclusion, the department alleged that 342.545 MT of M.S. Ingots/Runners and Risers were found to have been cleared without payment of duty. The statement of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal. In this regard, a judgment rendered by the Tribunal in the case of Ganga Rubber Industries v. Collector of Central Excise, as reported in 1989 (39) E.L.T. 650 was relied. It was also stated that the entries are wrong in the diary inasmuch as they did not show separately the quantity cleared and loaded in the truck from the factory on payment of duty on proper gate passes and the additional quantities loaded/handled in the truck from the noticees duty paid godown at Delhi. It was contended that even the entries in the note book are not wrong but that there is no mention of the fact that some more ingots were loaded/handled from their duty paid godown at Delhi. They also denied that Shri Arun Goenka, General Manager had confirmed the statement of Shri R.B. Singh and all the maintenance of the said note book/diary. They denied the correctness of 301.510 MT of M.S. Ingots clearances arrived at from the diary. 3. The learned Collector gave a hearing and has passed the impugned order. However, the said order has been passed in peremptory manner without due discussion on the details called out from the diary and without any corroborative evidence. 4. According to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of doubt is therefore, extended and the Boards order is set aside to the extent that the duty was demanded on the basis of these registers . 5. The learned Counsel also relied on the judgment rendered in the case of Kashmir Vanaspati Pvt. Ltd. v. Collector of Central Excise, as reported in 1989 (39) E.L.T. 655, wherein it has been held in paras 4 5, which is reproduced herein below :- 4. I have gone through the records of the case and the arguments advanced before me. The only evidence on the basis of which duty has been demanded and penalty has been imposed in this case is a private note book seized from Shri Desh Raj, Contractor. This note book was maintained by the labourers engaged by Shri Desh Raj. I have seen the entries made in the note book on 21-1-1986, 22-1-1986, 5-2-1986 and 11-7-1986. I find that on 21-1-1986 there is an entry of loading 1275 tins and packing 1600 tins. Whereas figure of loading is authenticated by initial, there is no authentication of the figure of packing. On 22-1-1986 entries indicate that 1600 tins were packed and 3930 tins were loaded. The figure 1600 tins against packing is initialled, but 3930 tins in respect of loading is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted statements have not been resiled by the party and therefore, such statements have binding effect and they cannot be set aside merely on the ground that corroborative evidence has not been produced. Therefore, he submits that the department were able to establish the facts found in the diary from the statements recorded from the persons. Therefore, the demands raised are required to be confirmed including the penalty, as there has been clear clandestine removal in the case. 8. On a careful consideration of the matter, I am satisfied that the submissions made by the learned Advocate has got force. The learned Collector has not taken pains to verify the contents of the diary and to scrutinise each and every entry with that of the statutory registers. After recording the case of the appellants and the respondents, he has confirmed the demands on the ground that there has been admission in the case. It has been reiterated by the Tribunal time and again that in case of clandestine removal, the department ought to produce corroborative evidence. Even if there are statements admitting the existence of private registers, even then the party has to be given an opportunity to explain e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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