TMI Blog2003 (12) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has partly confirmed the duty demand raised against the respondents and consequentially imposed penalties on the respondents. However, the Commissioner has dropped the demand in respect of certain allegations levelled in the show cause notice. The Department s appeals are basically directed against that portion of the order, which relates to the dropping of the demand and pray for confirmation of the demand for the amounts, which have been dropped and also pray for consequential imposition of higher penalty on the respondents than what has been imposed in the impugned order. 2.2 In the show cause notice issued to the respondent-manufacturer viz. M/s. C.M. Re-Rollers and Fabricators (Respondent No. 1) and other respondents, it was all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne removal of finished goods weighing 95.125 M.Ts. figuring in the loader s advices of the transporters. Findings - (Demand dropped). 2.3 The Commissioner in the adjudication order gave his findings on each of the afore-mentioned allegations the gist of which is extracted in the brackets below each allegation whereas in the Revenue s appeal only a few findings are under challenge, which are discussed individually. 3.1 A-Non-accountal of 289.335 MTs. of raw material - (i) The Commissioner on critical analysis of the evidence of raw material record maintained by the manufacturer, observed that, there was irregularity only in respect of 39.955 M.Ts and not for the entire quantity of 289.335 M.Ts. as mentioned in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that, the non-accountal of raw material (whether 39.955 MT alone or along with the additional quantity of 34.855 MT) was a merely technical breach, which is not disputed or challenged in the Revenue s appeal. 4. B-Non-accountal of 2,597 M.Ts. of flats/bars etc. involving duty demand of Rs. 43,77,344/- - The allegation is levelled on the basis of private record that has been allegedly seized from the factory s premises. The Commissioner has dropped the demand for Rs. 43,77,344/-. While the respondents are disclaiming the ownership of the said record, in the appeal it has been pleaded that recovery of the said record is duly recorded at Serial No. 14 of the annexure to the panchnama dated 6-8-1994 drawn on the spot. In the Order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994, 3-5-1994, 30-5-1994, 4-6-1994 and the entire month of July, 1994, private records referred to in the show cause notice or obviously mentioned by the unscrupulous manufacturers showing the actual quantity of day to day production and clearance which also includes the quantities recorded in the statutory records, for the purpose of discharging duty/taxes on such stock. Thus in any case, the quantity of productions and clearance accounted for in such dubious private accounts/records remain much more than the quantities accounted for in the statutory record leaving no scope for a situation when the statutory record shows more quantity of production and clearance as compared to such private account. In the instant case, as discussed above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigating officers have failed to adduce corroborative evidence either in regard to the source of procurement of raw materials used for such alleged suppressed production or for their clandestine removal leaving reasonable doubt and suspicion in regard to the authenticity and ownership of said private record and the entries made therein. Thus in respectful agreement of the various judicial pronouncements referred to above, I am constrained to hold that there is no relevancy of the said private record with the party s factory and their manufacturing activity and accordingly charges contemplated in the show cause notice placing reliance to the said private record including demand and recovery of Central Excise duty amounting to Rs. 43,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance of 2,597 M.T of finished goods, even though the department did not have evidence of evasion for the entire quantity. It is urged in the appeals that, the circumstance showed that the party was engaged in the clandestine clearance activity. 7. We have carefully examined the above grounds and we are unable to subscribe to the postulates to the effect that, where there is an evidence of partial evasion, conclusion must be drawn to hold that there has been clandestine clearance of 2,597 M.T. of finished goods as alleged in the show cause notice. This is so because, the Commissioner in his order has weighed the entire evidence on record, including all the probabilities before discarding the allegation of clandestine clearance. It has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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