TMI Blog2003 (12) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice. In the impugned order, the Commissioner has observed that 108 floppies in question which contained relevant information were found to be blank and they are being ignored. If this be the case, then the Commissioner ought to have discussed the evidence on which he has proceeded. He has merely concluded that private records indicate about supply of new ribbons and that they had not reconditioned or re-inked old ribbons to new ribbons. The Commissioner has also recorded that enquiries conducted at the end of the customers also revealed about this fact. However, the portion from which he has drawn such a conclusion has not been indicated in the order. Therefore, it is very clear that the impugned order is totally non-speaking order. It is pertinent to observe that the defence of the appellants was that they had maintained the detailed records in the form of RT-12 returns, D-3 intimation, Form V register showing receipt of used ribbons and the same having been reconditioned or re-inked and the order pertaining to the defence taken by the appellants. Therefore, while granting waiver of pre-deposit and stay of recovery, we deem it proper that the impugned order is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditioning, rectification and re-inking respectively are indicated to distinguish from the ribbons (cassettes) which were to be cleared on payment of duty. The plea is that these records have been seized by the authorities. The question therefore, that arises in this context is when the appellants have been filing the necessary returns before the departmental authorities whether there can be any suppression on the part of the appellants. What has to be considered in such a situation is whether the assessee was holding back any information from the authorities or falsifying/manipulating the records to derive any particular benefit. We find that the learned lower authority has not addressed himself to this question taking into consideration the range of the appellant s operations and the documents/records maintained by them and the periodic checks done by the authorities of the various statutory records maintained by them and check of the document filed by them as statutorily required in terms of Rules 173H and other Central Excise Rules. Merely stating that only some of the cassettes received for re-inking were returned is not enough. The authorities should have given the result o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant and the appellants have the right to interpret the full data entered in respect of their operations, in the floppies to put forth their defence. The appellants in the absence of the information from the floppies should have been given copies of documents which were relatable to the quantities cleared and manufactured. The learned lower authority instead of referring to the appellants documents which were relevant has merely observed that the appellants would be knowing about the documents based on which the information was fed on the floppies. We observe that it was incumbent upon the lower authority to relate the documents with the date on which demand has been raised. We observe that the learned lower authority has not been fair in his approach in asking the appellants to get the information from other documents. As it is, the plea is that the documents had been seized by the authorities and it is expected that these would have been scrutinised by the authorities and it should not have been difficult for the authorities to have furnished the copies of the same in case the copies of floppies could not be given. In view of the above, there is force in the plea of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthenticated by person who has taken out the information with proper signatures from the appellant is therefore not reliable evidence and cannot be looked into. It is stated that 108 floppies contained all the details right from the stage of procurement of raw material, accounting and use of the same in the manufacture of final products, receipt of already cleared Computer ribbons for re-inking and cassettes for repair etc. The details stored in the floppies are the only evidence on which the case has been built and, therefore, without supply of said documentary evidence in the form of 108 floppies, the order passed by the Commissioner on mere statements is not sufficient to uphold the charge of clandestine removal. It is stated by the appellants they had produced all the documents to show that imported material had been used for manufacture of floppies and for removal of same on payment of duty and that these documents have not been examined despite clear direction from the Tribunal. It is stated that Annexure III to show cause notice is only a printout of floppies. These printouts are not self-explanatory. These printouts only provide sales details and that the appellants were tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are all typed matters and it does not give the detail as to who has typed these matters and given to the appellants. There are several columns drawn in pencil and details recorded therein. These details are not printouts but details which have been given column wise and after taking out the details from 108 floppies. The annexures are all work sheets which are also not corroborated with any reliable evidence, which are required as necessity to be proved in the case with regard to manufacture and clearance of new cassette ribbons as alleged in the show cause notice. The details furnished in the form of tabulated columns which are said to be from 108 floppies is not relied upon evidence. There is no mahazar drawn with regard to printouts taken out from the floppies and the copies of the printouts have also not been furnished to them. The details taken out from these printouts in the form of tabulated columns which has not been signed by anybody. The evidence is not authentic and reliable one. The Commissioner himself has stated in the order that he is not relying on 108 floppies as the same have been corrupted. Revenue has not proved the case by producing 108 floppies or gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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