TMI Blog2007 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The case of the Revenue was that the range officer had procured five invoices from some informer and forwarded the same to the Deputy Commissioner, Central Excise Division, Sangrur by his letters dated 13-7-2000 and 19-7-2000 said to have been issued by the respondents who were manufacturing ordinary Portland cement. According to the Revenue, the Director of the respondent Shri Bhushan Bansal who was confronted with the said 24 invoices admitted that they did not tally with the invoices of the same number issued by the respondent for clearance of excisable goods, but the signatures therein were genuine. Even the other Director Shri S.K. Bansal who was confronted with these invoices admitted their signatures as genuine. One Baijit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of 23 invoices cannot be confirmed, as the evidence of such clandestine removal of goods was not established. He confirmed demand of duty only in respect of the goods removed under invoice No. 186 dated 27-8-1999. He also reduced penalty on the company to Rs. 500/-. 4. The learned authorized representative for the department contended a that the admissions made by the Director of the fact that the invoices were signed by them and that these invoices were having the same numbers as the statutory invoices which were shown in the record and that they were having different particulars from those shown in the original record, and further that the employee of the respondent who was accountant had admitted the fact of clandestine re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therein, that what is admitted need not be proved aliunde. 5. The learned authorized representative for the respondent company, on the other hand, submitted that the statement of Baijit Singhy, former accountant of the respondent company cannot be relied upon because, he had been dismissed from the company. It was further submitted that clandestine removal of goods could not be inferred on the basis of such invoices, which were generated by the said accountant. He also submitted that there was no admission of clandestine removal made by any of the Directors and no clandestine removal can be inferred, on the basis that their signatures appeared in the invoices. He also submitted that the buyers named in these invoices and the transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no doubt about the legal position that the charges of clandestine removal should be proved beyond doubt by-production of affirmative evidences", were made in a case where the Tribunal did not find "any evidences indicating towards the clandestine activities of the appellants". In that paragraph there is reference to an earlier decision of Saraya Steel Ltd. v. CCE, Allahabad , reported in 1998 (98) E.L.T. 787 which was followed. In that decision, the Single Member Bench had, in para 5 of the order, held that the "case of clandestine removal should be proved up to hilt, it should not be based on surmises, presumption or conjectures". There cart be no quarrel over the proposition that clandestine removal cannot be proved by mere sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution or the department is not required to prove its case with mathematical precision to a demonstrable degree. It was held that all that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof. Often it is nothing more than a prudent man's estimate as to the probabilities of the case (see paragraphs 30,32 and 33 of the judgment). 8. So far as the duty demand and penalty in respect of the goods under invoice No. 186 dated 27-8-1999 are concerned, since no appeal has been preferred by the assessee, the liability stands confirmed. Therefore, the matter is required to be examined only in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest was made by the Directors for cross-examination of Shri Baljit Singh, but cross-examination could not be offered because Shri Baljit Singh did not turn up in spite of two notices. When Shri Baljit Singh had tried to implicate the Directors and he did not turn up for cross-examination in spite of two notices, it was unsafe to rely upon his statement especially when he was dismissed from service, in the absence of any independent corroborative evidence to show the removal of goods under the said 23 invoices. The procurement of these invoices is shrouded in mystery. These are alleged to have been procured, "from some informer" by the range officer. These invoices were not found from the factory premises. These were also not produced by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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