9911796707
TMI Blog2001 (1) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... Driver of the Tempo Sri. Ashokkumar Shah on enquiry stated that he had been to appellant factory at about 4.30 hours. On verbal request of Sri. Omprakash Singh being a part loading contractor, and on verbal request of owner M/s. Radhashami Transport for lifting the above goods and to unload at Harni Octroi Naka, he brought them. For further probe, they visited appellant factory, and found it was closed on a weekly holiday. Security staffs on enquiry stated that nobody was available to explain thoroughly about the matter and they had been directed by the management to get the tempo loaded for despatch of said goods and they had been given GP No. 152, dated 20-7-91 and delivery challans on 485 to 489, dated 20-7-91 and also followed by a Inspection Report dated 19-7-91 and Chit No. 78 of 20-7-91. It gave doubt about genuineness of such type of removal as overwriting, scoring was made in the chit. They brought the Tempo alongwith goods to Headquarters office of Central Excise and detained by Superintendent, Central Excise (Preventive) Headquarters, Baroda for further investigation after recording the statement under Section 14 of Central Excise Act of the above tempo Driver on 23-7-91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued the case. The Order-in-Original was passed after going through all the available material on record. On 31-1-94 by Assistant Collector of Central Excise, Div. II, Baroda, confirming the show cause notice, and confiscated the goods valued Rs. 1,17,533.50 under Rule 173Q with redemption fine of Rs. One Lakh, and imposed penalty of Rs. 3 lakhs under Rule 173Q on the appellant, and confiscated the Tempo No. GJ-6-T-1523 under Rule 173Q with redemption fine of Rs. One Lakh to be paid by owner Ashok Kumar Motilal Shah under Section 115(2) of Customs Act read with S. 34 of Central Excise Act. The appeal preferred against the above order was dismissed under the impugned order, after hearing the appellant and perusing all the material available. Hence this appeal. 2. Perused the Show Cause, Reply and GP's, Panchanamas, Statements under Section 14 of Central Excise Act, Documents produced, Orders of Lower Authorities, Appeal memorandum, Synopsis. Heard Sri D.H. Shah, learned Counsel for appellant and Sri. A. Chopra, learned JDR for Respondent. Their contentions are taken note of, and discussed below in the light of documents available on record. The competence of Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of Superintendent and I/C Inspector, original Gate Passes were withdrawn, and advised to issue fresh gate pass. Accordingly, materials were despatched after execution for transport of the said goods showing thereon payment particulars as per old GPI is withdrawn. B11 bond backed by cash security is as under old GP1 No. 154, dt. 20-7-91 & 159, dt. 22-7-91 with new GP1 No. 181, dt. 9-8-91 & 182, dt. 9-8-91, which reveals basic duty and special duty was paid under original GP1 154 & 159. But further special duty was paid at 5%, since it was raised from 5% to 10% with effect from 25-7-91. Allegation of double transaction is not sustainable. Appellant factory is near Atladra Jakat Naka. To enter Baroda Municipal Corporation and deliver it to Octroi Naka (Harni) transit gate pass has to be obtained, and to support that goods have left the BMC limit. In addition, a declaration in Form 45C under State Sales tax rules was given to the check-post while leaving Gujarat State limit. 3. Regarding clearance of samples without Gate Pass, they were transported under GP1 No. 182, dt. 9-8-91. Mistake on the part of dealing assistant may not be interpreted to such an extent of clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Double transport to Andhra Pradesh within 2 days was impossible. No evidence is produced for double transport. Technical or procedural error does not prove it. Goods should not be confiscated; when there is no evasion of duty, and there is a clear proof that duty has been paid as per Board circular. At the time of seizure goods were covered by GP1 159, dated 22-7-91 and 154, dated 20-7-91. Seizure was illegal. There was no clandestine removal. On 22-7-91 when tempo arrived GP1 159, dt. 22-7-91 was prepared and six samples were placed in the tempo alongwith the goods of GP1 154, dt. 20-7-91. They cannot be seized as duty paid. Seizure of Tempo was not sustainable as goods therein was duty paid. 5. Under Order-in-Original on page 2, it is observed the double transaction under GP1 154 on 20-7-91. In page 6 in findings under serial No. 5B it is held Appellant has removed the goods thrice. No direct or circumstantial evidence is discussed. There is no interrogation of workers, staff members, security guard, transporters, octroi check post staff and consignees. Documents like challan, chits, correspondence, octroi transport passes are not brought on record. Goods allegedly remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 wooden boxes were on confirmity with those shown in GP1 No. 152, dated 20-7-91. It is also duty paid. There are no sufficient material before the Lower Authorities to hold that the seized goods were offending goods. Even if the statements under Section 14 of Excise Act and documents such as Panchanamas, Delivery challans, Chit and Gate Passes are examined in detail it does not support the allegation of double transaction under one GP1 No. 154. As pointed out by appellant, there is no independent supporting material. There is no investigation in that line. The mistakes in documents are admitted and explained by appellant in reply to show cause notice written submission. The order-in-original deals only with suspicion; which cannot take the place of proof. No positive evidence is shown for double transaction with substantial material. Goods transported under same invoice is not traced. So also its destination. The orders of lower authorities is mainly based on the errors and omission of the staff of appellant factory, which are admitted and satisfactorily explained. There is no evasion of duty by appellant as per reply to show cause notice and written submission. It is improbable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of time of despatch of goods, which is explained in the written submission of appellant before the Commissioner (Appeals). There is no reply by department in that regard. In the absence of it, appellant's stand gains weight. Under item No. 8 in page 7 deals with the Sales tax 45A, showing the clearance of goods mentioned in Delivery challan Nos. 485 to 489 under GPI 154, dated 20-7-91 and factory chit by Jyoti Transport on 20-7-91. No Tempo number is shown. Even this is explained by appellant in reply to show cause notice and written submission satisfactorily. There is no positive evidence in that regard, contrary to reply to show cause notice. In the absence of it, appellant's case remains uncontraverted. As already observed discrepancies, omissions, errors are magnified, there is no independent investigation by the department with corroborative oral and documentary evidence, in support of the allegation, negativing the defence set up. Department has to make out a probable case as per show cause notice by independent evidence. The appellant should rebut it. But, in the case on hand, the department expects the appellant to refute show cause allegations, which is stand refuted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
