TMI Blog2002 (2) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... essed fabrics was noticed. A separate show cause notice in respect of that fabric, which was seized, was issued (that show cause notice is not the subject matter of present appeals). Thereafter, the Officers visited the premises of transport company known as M/s. Gupta Transport Corporation, Balotra, through whom the appellants had been receiving the grey fabrics. The transport registers maintained by that company revealed the receipt of grey fabrics by the appellants during the period 1994-95 to December, 1997. But the entire receipt of the fabrics was not found entered by the appellants in their statutory record called Form IV register. The discrepancies found, therein had been detailed in the impugned order itself. The statement of Shri Shyam Sunder Agarwal, Manager of M/s. Gupta Transport Corporation, was also recorded, wherein he disclosed that the delivery of the goods was taken by the parties whose names were indicated in column 15 of the register as consignees. He also disclosed about the delivery of the grey fabrics to the appellants. Thereafter, statement of Shri Tara Chand Kothari, partner of the appellants firm, was also recorded who did not dispute the receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signor of the grey fabrics had been recorded to prove the actual receipt of the grey fabrics by the appellants. Similarly, no statement of any buyer to whom the appellants allegedly in a clandestine manner sold the processed fabrics without payment of central excise duty had been recorded. No processed fabrics was even intercepted in transit. Therefore, the impugned order of the Commissioner deserves to be set aside. 5. On the other hand, the learned SDR has reiterated the correctness of the impugned order of the Commissioner. 6. We have heard both sides. The duty demand has been raised and confirmed against the appellants on the allegation that the quantity of the grey fabrics received by them from the transport company, M/s. Gupta Transport Corpn. was in excess than what had been entered by them in their Form IV register and that the excess quantity had been processed and cleared, in the form of processed fabrics without payment of duty by them, during the disputed period. To substantiate these allegations, the main reliance has been placed by the Department on the entries made in the transport registers of the transport company known as M/s. Gupta Transport Corpn. But those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat firm is at page 349 (Annexure 4-A). 7. It is not the case of the Revenue that none of the above referred firms or the companies were in actual existence and that their names had been fraudulently used by the appellants. No statement of any Partner/Director/Employee of any of these firms/companies had been recorded in that regard. Rather, these firms/companies had even accounted for the goods in their respective records as is evident from the copies of the documents placed on the record (refer pages 309 to 347 of the paper book). No statement of any consignor had been recorded that the delivery of the goods was actually taken by the appellants against payment to them and not by any of the above referred firms/companies, such as, M.B. Processing House, Sadhna Textiles etc. Even the Manager of the transport company, namely, Shri Shyam Sunder Agarwal, in his statement recorded on three different dates, had nowhere categorically stated that delivery of all the consignments as detailed in the above referred annexures, was made to the appellants and not to the firms/companies whose names were entered in the register. Shri Tara Chand Kothari, Partner/Director of the appellants compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of the assessee was accepted and the duty demand was set aside. The ratio of the law laid down in that case, very aptly applies to the case of the present appellants. 9. No evidence to prove the processing of the grey fabrics and clearance of the processed fabrics by the appellants had been also brought on the record. No statement of any buyer to whom the appellants allegedly sold the processed fabrics had been recorded nor any documents showing the clearance of such fabrics by them, in a clandestine manner, had been placed on record. It is well settled that the charge of clandestine removal of the goods has to be established by adducing positive evidence and that the same cannot be based on assumptions and presumptions. In this context, reference may be made to the following cases wherein it has been so laid down - (1) M/s. Amba Cement and Chemicals v. CCE, 2000 (115) E.L.T. 502 (T) = 2000 (90) ECR 265; (2) M/s. Oudh Sugar Mills Ltd. v. UOI, 1978 (2) E.L.T. (J-172); (3) M/s. Gurpreet Rubber Indus. v. CCE, 1996 (82) E.L.T. 347; and (4) M/s. Saheli Synthetics Pvt. Ltd. v. CCE, 1999 (113) E.L.T. 1000. In Oudh Sugar Mills Ltd. supra the Apex Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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