TMI Blog2016 (3) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... uty, entries reflected in private chits cannot itself be a ground for confirmation of demand. Therefore, the confirmation of demand on this count is liable to set aside. Demand on cancelled invoices - Held that:- Find force in the contention of the ld.Advocate for the Appellant. In his statement dated 30.11.2004 Shri Ravinder Prasad, Director of the appellant in response to question No.13 has explained that in view of the fact that the levy was new and the appellant had no experience in the field of excise, therefore, mistakes occurred in writing the invoices resulting into frequent cancellations. This statement has not been rebutted by the department by making necessary investigation with the consignees mentioned in the respective cancelled excise invoices. In absence of substantial evidences of clearance of goods against cancelled invoices, it is difficult to accept that the appellant indulged in clearance of goods without payment of duty against cancelled invoices. Therefore on this count also the confirmation of demand fails. Demand on Oxygen gas cleared in the year 2002-03 - Held that:- the appellant themselves had admitted clearance of the Oxygen gases after March, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of ₹ 10.73 Lakhs was imposed. Aggrieved the appellant filed an appeal before the ld.Commissioner(Appeals) and the ld.Commissioner(Appeals) vide order dated 11.11.2005 upheld the said order. Consequently, the appellant preferred an appeal before this Tribunal. By its order dated 07.07.2006 the Tribunal remanded the matter to the adjudicating authority for denovo adjudicaion after providing effective personal hearing to the appellant. Consequently, after hearing appellant on 12.12.2007 and considering their written submission, the de novo order was passed by the adjudicating authority confirming the demand and imposition of equivalent penalty besides directing confiscation of goods. Aggrieved by the said order the appellant preferred an appeal before the ld.Commissioner(Appeals). The ld.Commissioner(Appeals) after considering the evidences on record dropped the demand relating to CENVAT Credit of ₹ 8,04,445/-, upheld the confirmation of duty of ₹ 2,68,597/- short paid and reduced the penalty to ₹ 1,96,997/-, besides upholding confiscation and recovery of interest ordered by the adjudicating authority. Hence, the present appeal. 3. Ld.Advocate Shri Manish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorically submitted that they have entered into an agreement with the Appellant on 15th March, 2003 and thereafter they have started purchasing Oxygen gas from the Appellant. He submits that no other evidence has been produced by the department except on the basis of the said agreement dated 15.03.2003, allegations were made and confirmed stating that Oxygen gas was also sold prior to the said date of agreement. It is his contention that in absence of evidences of clearance/sale of Oxygen gas which emerged as a by-product and vented into the air prior to the said period, confirmation of duty is unsustainable in law. 5. Regarding the duty liability of ₹ 32,367/- on cancelled invoices the ld.Advocate has sample copies of cancelled invoices submitted along with their paper book. It is his contention that since duty on Vanaspati has been levied for the first time in the year 2002-2003, the procedure for maintenance of the records was not in accordance with law inasmuch as the person who used to prepare the excise invoices did not know the implication of cancellation/correction of an invoice. He submits that the invoices were cancelled/corrected if any of the entries in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mall chits/papers involving duty of ₹ 1,32,903/-, (ii) Demand of ₹ 32,367/- on cancelled invoices and (iii) ₹ 32,400/- on Oxygen gas cleared in the year 2002-03. As against the demand on rough notes I find that neither authorities below had analyzed the evidences by which it could be inferred that whether the quantity mentioned in those rough chits had infact been cleared without payment of duty. Merely because the entries mentioned in the rough chits did not tally with the production/clearance register would not by itself lead to a conclusion that the quantity of goods mentioned in those private chits were clearance without payment of duty. On the other hand, on scrutiny of the reconciliation statement submitted by the appellant during the course of hearing, the ld.AR for the Revenue has fairly accepted that approximately 50% of the quantity mentioned in the private chits had been cleared on payment of duty as it conforms to the respective Central Excise invoices issued during the relevant period. Also, I find from the statements of two customers, namely, Shri Amar Kasera and Shri Sunil Kr.Agarwal recorded by the department that they have purchased the goods agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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