TMI Blog1999 (6) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... of Industries, Rajasthan. Notification No. 60/91-C.E., dated 25-7-1991 gave exemption to the goods manufactured by the appellants if it contained fly ash not less than 25% by weight. The benefit of this notification was available to the appellants when they filed their CL on 1-4-1992. The appellants did not claim the benefit in the said CL. Subsequently, the appellants filed further CL w.e.f. 15-12-1992 claiming the benefit of Notification No. 60/91 as amended by Notification No. 26/92, dated 1-3-1992. This CL was also approved by the proper officer under Rule 173B. Notification No. 60/91 was however rescinded on 28-2-1993 by Notification No. 76/93. However, by another notification dated 28-2-1993 namely Notification No. 38/93-CE goods falling under Chapter 68 (other than Heading 68.04) were exempt from the whole of the duty of excise on the condition that the same contained not less than 30% fly ash by weight (minus water content). Accordingly the appellants filed a further CL dated 28-2-1993 claiming the benefit of Notification No. 175/86 which was also approved. On 12-3-1993, the Notification No. 38/93 was amended to the extent the benefit in respect of the said goods was avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls by production of the goods. He submits that since the entire supply of the goods manufactured by the appellants were to Government Departments and Undertakings and since no complaint whatsoever had been received from the said Departments/Undertakings alleging that fly ash content was less than 25% by weight, the appellants bona fide was fully established and the Department s case was based on assumptions and presumptions unsupported by any evidence. He also drew attention to the fact that the purchase of raw materials of the appellants factory like cement fibre and fly ash is looked after by their office at Bombay and whenever the raw material is received at the factory the same is verified with regard to the invoices/bills and thereafter the said invoices/bills were forwarded to the Bombay Office for payment to the supplier and as such bills and invoices relating to purchase were kept at Bombay Office and only 3 bills corresponding to transport receipts of an aggregate quantity 29.140 MT remained at the factory. The Department had relied on the statement given by Shri Amar Singh on 13-9-1994 and 14-9-1994. However the said statements on the receipts of fly ash of 29.140 MT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and clearance of the AC pipes by the appellants contained less than 25% fly ash was the private records resumed by the officers. The said records did not belong to the appellants nor had they been proved to be authenticated as correct. He places reliance on the following case law in support of his contention that in such circumstances the allegation of clandestine production/removal cannot be sustained:- [1989 (39) E.L.T 650], [1989 (39) E.L.T. 655], [1995 (76) E.L.T. 410] and [1993 (68) E.L.T. 141]. 4.(iv) As regards five private records maintained by Shri Noor Mohammad, Production Manager at the relevant time, ld. Counsel drew attention to the fact that the said records were recovered from the premises on 3-8-1993 by breaking a locked cupboard since the key was not available. Reliance was placed on the statement given by current Factory Manager Shri Arun and that of Shri P.S. Ray, an Engineer who occasionally helped the appellants on the technical side. Though Departmental Officers had drawn the samples of the goods seized, the appellants were kept in the dark about the result of test, if any, carried out by the Department. The Commissioner in the impugned order had however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s however did not deal with the details of the clearances which were being recorded in A-18 and A-19 registers and which were co-relatable with the RG 1 register. It was not necessary that the production as shown in the private records should be correspondingly reflected in RG 1 register of the same date and the period as sought to be made out by appellants, since there was clear evidence that the private records were maintained by the Production Manager and it showed the correct quantity of production including fly ash contents. Since Shri P.S. Ray and Shri Kheriwal had admitted that there was variation between those registers and RG 1 register figures, finding of the adjudicating authority of clandestine removal cannot be faulted. As regards reliance on transport documents recovered from the almirah of Shri Kheriwal and the statement given by the transporter of fly ash supplier that the quantity of flay ash was not transported in respect of 23 receipts out of 26 receipts, he submits that there was no explanation forthcoming on this aspect. Since all the receipts indicated the name of M/s. JMC, reliance placed on receipts and transport documents produced at the time of hearing bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h more than 25% by weight by manipulating their records for wrongly availing exemption under Notification No. 38/93 as amended. The Department has relied on the seized records and the statements recorded from the persons connected with the production of excisable goods and the maintenance of records. The first statement made by the appellants relate to private records (D-series) shown in the panchnama. The reliance on the said records is questioned by the appellants on the ground that these records were maintained by a person who has neither admitted to having maintained such registers nor as to the correctness as to its contents. Nor did they contain any signature of the person who had maintained them. The appellants have maintained that even if it had been maintained by the Production Manager at the relevant time, there was nothing to show that he had been authorised to do so by any superior authority. Ld. Counsel had strongly urged that even at the time of recovery of the same from the locked cupboard of the Production Manager, the same had to be broken open since the key thereof was not available. The only nexus between the said documents with the Production Manager (no testimo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egister. Therefore the entries contained in those registers could not be brushed aside as not reliable and not accurate in the number shown not tallying with the RG 1 register. Regarding lack of authorisation from his superior for maintenance of D-series registers by the then Production Manager, the ld. SDR had drawn attention to the fact that Shri P.S. Ray had in his statement admitted to having advised Shri Arun Kumar and Shri Noor Mohammad for taking necessary action on lines decided by the management. Further Shri Arun Kumar had also admitted that the registers were being maintained by Shri Noor Mohammad. 7. Having considered these submissions of both sides and the records, we are of the view that the mere fact that the D-series registers do not contain the signature of Shri Noor Mohammad, Production Manager who maintained those records, or the fact that there was no authorisation given by the superior officer for maintaining those registers do not by themselves make them inadmissible since these have been admittedly recovered from the wooden cabinet used by Shri Noor Mohammad. The statement of Shri Arun Kumar, the person who was the Manager of the appellant company and who k ..... X X X X Extracts X X X X X X X X Extracts X X X X
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