TMI Blog2002 (8) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... 9A of Central Excise Rules, 1944. 2. The appellants are engaged in the manufacture of cement falling under Chapter 25 of the First Schedule to the Central Excise Tariff Act, 1985. The officers of Central Preventive Unit, Central Excise Customs of Bhubaneswar-II Commissionerate during the course of road patrolling intercepted three trucks on 25-8-99 at about 15.20 hours. On demand the driver of the said trucks produced duplicate copies of three challans dated 25-8-99 in respect of 10 MT of Sita brand cement loaded in each of the above trucks. The said invoices showed the PLA debit entry numbers thereby giving the impression that the duty has been paid by the manufacturer from the PLA. However, the officers in order to cross-check the duty particulars visited the appellants factory. Another truck loaded with cement was found standing outside the factory premises. The challans meant for the goods loaded in the said truck, were shown to the officers. However, another truck which was also found loaded and standing out side the factory premises was not accompanied by any duty paying documents. The officers on entering the factory premises took over the PLA and RG 23A Pt. II records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the invoice, for example, like 151 to 500 whereas the second set was having Sl. No. as 000151 to 000500. Some of the original/duplicate copies of the challans were not found and the appellants were directed to produce the same but as recorded in the impugned order it is seen that the appellants avoided to produce the same by submitting that they were not readily available in their office. However, the Commercial Manager, Shri J. Dutta in his statement recorded before the officers admitted that those documents have been destroyed by their Head Office. Shri Joshi, another Representative of the appellants in his statement admitted the maintenance of two sets of book but reasoned that the same were used due to delay in getting books from the printing press and it was done to match the Serial Numbers. 6. The appellants immediately admitted that the duty have not been paid by them in respect of clearances effected on five trucks intercepted by the Preventive Officer en route and standing outside their factory. They also admitted that the challan numbers 501 to 1117 issued during the period 29-5-99 to 25-8-99, though reflected duty payment particulars but in fact no such duty has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere maintaining two sets of invoices for clearance of the dutiable items and the entries of duty payment particulars reflected in the first set of invoices have been admitted to be false. As such, the adjudicating authority has concluded that the appellants have cleared the goods two times whereas they have paid duty only once. Shri Bagaria, ld. Advocate appears before us, admits that the appellants have, during the relevant period, maintained two sets of challan books. He, further, explains that the appellant was going through a very bad financial period. As such, they were clearing the goods from their factory by showing fake debit PLA entries. Subsequently, whenever they were having the finances, they used to prepare another set of identical invoices from the duplicate challan book and pay the duty giving the correct number of debit entries made in PLA. On a query from the Bench, he clarifies that the triplicate and quadruplicate copy of the invoices from the first set of book and the original and the duplicate copy of the invoices, from the second set of book was being destroyed by them. He however could not explain as to how the original copy of the invoices, which is supposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indulging into activities of the clandestine removal, he will take care and precaution not to reflect the procurement of raw-materials in their statutory records which raw materials were to be used by them in the manufacture of final product to be cleared from payment of duty. In most of the cases referred to (reported in 29 RLT 183, 31 RLT 324 32 RLT 845) by the ld. Advocate, we find that the allegations of the clandestine removal were either based upon the entries made in the private note book of Honorary Workers with the firm or the entries made in note book of the driver, or the private book maintained by the labourers etc. It was in these circumstances, the Tribunal observed that there was no sufficient materials on record to establish the allegations of the clandestine removal and the Department should have conducted further verification and investigation to establish the non-accounted production. No doubt the charge of clandestine removal is a serious charge and is required to be proved by the Revenue and cannot be discharged by raising assumption and presumption. What is relevant is the degree of such proof in each and every case. The department cannot be accepted to disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quadruplicate copies and the particulars of debit was being shown in the copies. The appellants contention is that no two sets were being maintained by them during the said period and it is only that the duty paying particulars were being entered in the third and fourth copy after about one or two days of the clearance of the goods. Though we find that such a procedure adopted by the appellants on its own is not in accordance with law under the provisions of Central Excise Law, but we find that as in contrast to the earlier two Annexures, there was no duplicate set of invoices recovered from the appellants premises. The allegations are only based upon the fact that the duty was not being debited as shown in the original and duplicate copy but the same was being debited subsequently and reflected in the triplicate and quadruplicate copies of the invoices. This act on the part of the appellants though may attract some penal action but will not lead to the conclusion that the appellants have cleared the goods two times. As such, we extend the benefit of doubt to the appellants in respect of duty demand of Rs. 4,72,532/- (Rupees four lakh seventy two thousand five hundred thirty two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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