TMI Blog2012 (6) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter 72 and 73 of the schedule to the Central Excise Tariff Act, 1985. Their factory was visited by the Preventive Central Excise officers on 25.7.96. Various checks and verifications were conducted. The stock of final product was found to be tallying with the recorded balance in RG I register. However, some of the raw materials like scrap, ferro manganese and ferri silicon were found short to the extent of 166.758 MT, 3.920 MT and 0.050 kg respectively. A panchnama 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner and the grounds of appeal, we find that the Revenue has again reiterated their stand taken before the original adjudicating authority and have submitted that inasmuch as clandestine clearance of 11.056 MT of casting stand established even from the order of Commissioner (Appeals), it is to be presumed that they are indulging in clandestine activities and shortage of raw materials should be held as having been converted into the final product, cleared 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 supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material obtained under the banks have been sold after converting them into finished goods but the sale proceeds have not been deposited in the account. 14. I am recording the facts again for a better appreciation of the case. This is a case of alleged clandestine manufacture and clearance of excisable goods on the basis of the following evidences: (i) Shortage of physical stock of raw material as compared to accounted stock on the date of surprise 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 17. In my view the evidence, in the case under consideration, as stated above clearly proves that the Respondent indulges in unaccounted 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 Sure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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