TMI Blog2016 (6) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... t the consent and knowledge of the transport company and therefore the transport company is also liable to penalty along with the drivers. Therefore, it is found that the case is established against the appellants at least on the yardstick of preponderance probability. Revenue is not required to prove its case with mathematical precision specially in cases involving deliberate and well-thought out modus operandi to evade duty. - Decided against the appellant - E/54621-54624/2014-EX[SM] - Final Order No. 51783-51786/2016 - Dated:- 12-5-2016 - R.K. Singh, Member (Technical) For the Appellant : Shri Rupesh Kumar and Shri Jatin Singhal Adcovates For the Respondent _ Shri B.B. Sharma, AR ORDER These appeals have been filed against order-in-original dated 23.5.2014 in terms of which the Commissioner passed the order as under: (i) I confiscate the goods having MRP value ₹ 27,64,598/-(Rs. 15,12,602/- seized on floor, ₹ 6,83,52/-(MRP) and ₹ 5,68,644/- (MRP) seized in the trucks) seized in the factory premises of M/s. Autolite India Limited, D-469, Road No. 9A, VKI Area, Jaipur under Rule 25 of the Central Excise Rules, 2002. Since the goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for area based exemption. The statements of the drivers were recorded who claimed that the goods were brought from Pantnagar but they could not produce any evidence e.g. receipt of toll payments or fuel/petrol pumps receipts of purchase of fuel en-route. The security guard of the factory stated that no entry was made in the Gate Register because empty trucks entries are not made. During the search of the factory Auto Head Lamps and Halogen Bulbs valued at ₹ 15,12,602/- packed in boxes showing Pant Nagar unit as manufacturer were also found lying on the floor. These goods lying on the floor (along with head lamps loaded in the two trucks valued at ₹ 6,83,352/- and ₹ 5,68,644/-) totally valued at ₹ 27,64,598/- which were seized, were ordered to be confiscated and penalties imposed as per the impugned order reproduced above. 3. Ld. Advocate for the appellants contended that : (1) Burden of proof to prove clandestine removal is on Revenue. (2) M/s AML, Pant Nagar was fully equipped to manufacture the impugned goods. Returns were enclosed for the F.Y. 2011-12 and challans evidencing payment of CST and VAT for the quarter Jan, 2012 to March, 2012 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck drivers of the trucks on which the impugned goods were loaded could not give any evidence of bringing the trucks from Pant nagar. The security guard of the factory stated that empty trucks coming in the factory premises are not entered in the register. There is no dispute that the goods seized had been labelled as having been manufactured in Pant Nagar and there was no evidence that the same were brought from Pant Nagar and it is thus clear that the goods were actually manufactured in the premises where they were seized and only labelling showing that they were manufactured by Pan Nagar unit was put to evade payment of duty. 5. I have considered the contentions of both sides and perused the record. It is an admitted fact that the impugned goods which have been ordered to be confiscated had been labelled to show/claim that they were manufactured by the appellant at its Pant Nagar unit. Two trucks which were loaded with the impugned goods did not have any entry in the gate register of Jaipur factory showing that they entered the factory and the security guard of the factory clearly stated that no entry is made when empty trucks entered the factory. It shows that at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Rule 16 of Central Excise Rules, 2002. Although Rule 16 ibid is in context of credit of duty on goods brought to the factory, it clearly states that particulars of receipt of such goods have to be entered in relevant records. No such entry in the records was made. Also some of the impugned goods were lying on the floor with stickers showing M/s AML Pant Nagar as manufacturer. If AML Pant Nagar was the real manufacturer these goods could not have been lying on the floor of the appellant s factory at Jaipur. The appellant has not been able to give any plausible and acceptable explanation therefor. At this point it is pertinent to mention that the goods manufactured at Pant Nagar and at Jaipur are essentially identical except for the stickers affixed to indicate where they were manufactured. It is clearly brought out and admitted that all the major raw materials for Pant Nagar were also arranged from the appellant s head office at Jaipur and that the purchase of packing materials was also made from local vendors. All this when viewed in the light of the statement of the factory s security guard that no entry of empty trucks entering in the factory is made leads to the inescapable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court on merits without reference to the period of limitation . [Ramachandra Rexins Pvt. Ltd. v. Commissioner 2014 (302) E.L.T. A61 (S.C.)] In its order referred to above [2013 (295) ELT 116 (Tri.-Bang) Tribunal held that in a case of clandestine activity involving suppression of production and clandestine removal, it is not expected that such evasion has to be established by Department with mathematical precision. A person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidence. The evidence available shall be those left in spite of the best care taken by the persons involved in such clandestine activity. In quasi-judicial proceedings, in such a situation, the entire facts and circumstances of the case have to be looked into and a decision has to be arrived at on the yardstick of preponderance of probability and not on the yardstick of beyond reasonable doubt . In case of clandestine removal, benefit of Cenvat/Modvat claim cannot be considered in absence of duty-paying documents. Similar view was expressed by the Supreme Court in the case of Bhooramal Premchand Vs. CC. Madras 2000 (125) E.L.T. 118 (Mad). 7. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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