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TMI Blog2003 (12) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alleged that they have i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods under removal being of flats/bars etc. (duty amounting to Rs. 3,28,790/-). Findings - (Demand for Rs. 3,28,790/- confirmed). (F) Clandestine 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 289.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bring on record any other corroborative evidence to prove that such non-accountal was indeed there. Besides even inclusion of this additional quantity of 34.855 MTs. of so called non-accounted quantity, in the quantity of 39.955 MT., the same will not make any impact on the ultimate conclusion 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 dro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in whose handwriting the entries in the said private records have been made. I further find in some instances RG-1 shows some production on a particular date whereas the said private production register shows NIL production on that date. For instances on dated 16-4-1994, 17-4-1994, 18-4-1994, 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumption, presumption and surmises. Thus in the instant case as elaborately discussed above the investigation officers have abruptly failed to establish the relevancy of the said private records and the entries of production shown therein with the party Nos. 1 to 4. Besides above the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void of merits. 6. Revenue appeals also mention that, since the Commissioner has already held that the party was engaged in the clandestine clearance of finished goods involving duty of Rs. 4.37 lacs, [sub-paras (C) & (E) of Para 2.1] he ought to have considered that, there is an evidence of clearance 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 hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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