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TMI Blog2012 (6) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... anchnama was drawn. Scrutiny of private records resulted in recovery of two loose papers kept in a red register. The said papers were showing disposal of final product of the respondents. On comparison with RG I entries, it was found that clearances reflected in the said loose papers were not recorded. 4. Statement of Shri D.S. Trivedi, Accountant was recorded on 2.8.96 wherein he deposed that the shortage of raw materials is due to non-verification of stock of raw materials from time to time. As regards, the loose papers, he deposed that same were written by Shri P.S. Gehlot, Production Supervisor. Shri Gehlot did not appear for recording of statement in spite of summons being issued to him. 5. As the loose paper recovered from the factory revealed that the casting have been sold to one Shri Bupender Kumar, Proprietor, M/s.Sneh Sales Corporation, Indore, inquiries were conducted at the end of buyers. Shri Bupender Kumar in his statement on 5.8.96 admitted that the said goods reflected in loose papers were over and above the goods supplied to him under the cover of invoices. He clarified that the entire payment was made in cash and he has further sold the goods in cash to his cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestinely. Infact, we find that while framing the issue, the Revenue, in their memo of appeal have themselves mentioned that the raw material found short is presumed to have been used in the manufacture of final product, removed clandestinely. Apart from the so called shortages of raw materials, we find that there is no evidence on record establishing conversion of raw material into final product and clearance of final product. 10. The respondents have filed cross objection and have drawn our attention to various decisions of the Tribunal. We note that each case of clandestine removal is required to be adjudged on the basis of fact and evidence available in that particular case. No doubt for the legal principle support can be taken from precedent decision but the same is required to be applied to each and every case. In the present case, apart from the shortages, which the appellant has disputed on the ground that the same was calculated on eye estimation and no actual weighment was conducted, we find that there is no other evidence reflecting upon the clandestine removal of huge quantity of 170.592 MT alleged by the Revenue to have been manufactured by the appellant. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise verification; (ii) Certain loose sheets of paper recovered from the factory; The Accountant of the factory stated initially that it was written by Shri. P. S. Gehlot, Production supervisor; (iii) Unwillingness on the part of Shri. Gehlot to join investigation initially; He joined proceedings later and stated that the loose sheets were not written by him; but he admitted that some of the goods cleared to one of the buyers namely, Sneh Sales Corporation were cleared without payment of duty and the said fact was confirmed by the Director of the company. (iv) Admission by Sneh Sales Corporation that they received certain goods which were not covered under invoices and they paid sale value of such goods in cash; (v) Report from the Chief Manager of State Bank of India addressed to the Respondent seized from the files of the Respondent stating that they were not depositing sale proceeds in banks. 15. At this stage unaccounted clearance of final products to M/s Sneh Sales Corporation is not being challenged. The challenge is in respect of the rest of demand calculated based on the argument that goods manufactured out of the missing raw materials also were cleared clandestinely w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture and clearances. The position that there was shortage of raw materials was accepted at the time of verification though later there is an attempt to retract from the admission based on the argument that stock was taken based on eye-estimation. From Panchnama dated 02-08-96 what I find is that the physical stock available was found out by loading the goods on truck No. MPO-3211 and CII-1711 and weighing. Weighment slips recorded at Maheshari Alloy Casting Pvt. Ltd. are enclosed to the panchnama. Thus I see the submission on this count to be false and an attempt to fit the facts of case into case-laws rather than seeing whether the case laws fit into the facts of the case. Further during the initial statements of Shri Suresh Sharma Director of the noticee company on 27-08-96 admitted the facts of clandestine manufacture and clearance rather than challenge the accuracy of stock taking. 18. The private records recovered from the factory prove clandestine manufacture of the goods. Further, in respect of one buyer Revenue has been able to prove the goods were actually sold to them without payment of duty. In my view these facts seen together proves the case of Revenue b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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