TMI Blog2012 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... te, for the Appellant. Shri S.K. Mall, AR, for the Respondent. [Order]. On the basis of information received that the appellants were clearing aluminium slugs, circles etc. manufactured by them under parallel invoices without payment of duty, a surprise visit was made to the factory of the appellant, M/s. Pet Metal Pvt. Ltd. (assessee) on 23-6-07. During the visit no incriminating records were found nor any difference in the stock was found. The officers were carrying nine invoices with them which on verification with the records maintained by the appellant were found to be parallel ones since goods had been removed under invoices with the same invoice number to other parties on payment of duty. Shri Amit Singala, the director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents would have been misused since the authorized signatory was no longer with the company. He also did not admit with the clandestine removal in his representation stating that they had not resorted to any removal under parallel invoices. Further, an affidavit was also submitted while giving reply to the show cause notice. He relies upon the decisions of the Tribunal in the case of C.C.E., Tirunelveli v. SSD Spinning Mills Ltd. reported in 2008 (222) E.L.T. 392 (Tri. - Chennai). As regards the decision of the Tribunal in the case of Tanna Electronics v. C.C.E., Mumbai reported in 2005 (186) E.L.T. 312 (Tri. - Mumbai) relied upon by the lower appellate authority, he submits that in the case of Tanna Electronics besides the statement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el invoices did cover such clandestine removals. 4. I have considered the submissions made by both the sides. In this case other than nine parallel invoices, there are no other invoices/evidence to support clandestine removal. As submitted by the learned counsel, the director in his statement given at the time of visit of the officers to the factory in June 2007 had stated that he was not aware of day to day operations and he would inquire into the issue and explain the situation. Subsequently when his statement was recorded on 15-2-08, even though he admitted clandestine removal in his statement, he promptly submitted a representation on the same date denying the allegation and explaining with the authorized signatory had left the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though strictly speaking each clandestine removal case is unique by itself and it may not be appropriate to compare the case with some other case. In the case of SSD Spinning Mills Ltd., two sets of invoices and the dispatch register were recovered. The invoices were found to be in five pairs each bearing the same sl. no. but covering clearances of different goods namely cotton yarn of cones and cotton yarn in hanks. The officers conducted verification with the buyers in the case and the buyers had admitted that originally the invoices for cone yarn were given to them but later substituted by invoices showing clearances of hank yarn. One of the traders denied having any transaction with the spinning mills. The transporters statement was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross-examination of traders/buyers etc. We wanted to examine these evidentiary materials, but none is available on record, nor is the SDR possessed of any. In the circumstances, we are not in a position to assess any probability . 6. None of the citations given by SDR can support his proposition that a demand of duty can be raised on a manufacturer on the basis of probability. One of the orders cited by SDR was rendered by the Hon ble Supreme Court and another by the Hon ble High Court of Gujarat. Both the cases were in relation to proceedings under the Customs Act and none was in relation to any demand of duty. In the case of Roxy Enterprises (supra), the allegation of the department was that the party had clandestinely manufactured and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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