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TMI Blog2016 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ated.10.03.2000 was issued to the appellants alleging that they had clandestinely manufactured and removed the final products without payment of duty. The Adjudicating Authority in his OIO Sl.No.162/2002 dated 27.09.2002 confirmed the demand of Rs. 9,28,805/- being the excise duty involved on the said cotton yarn for the period from 01.01.1999 to 17.09.1999 and also ordered for confiscation of 2295 kgs of 30s Cotton yarn (Cones) for the value of Rs. 1,97,370/- and imposed redemption fine apart from interest and imposed penalties on the appellant-company [Appellant No.1] and imposed a penalty of Rs. 10,000/- on Shri. C. Sundaramurthy [appellant No.2], the Commission agent. The Commissioner (Appeals) has affirmed that order with modification after considering the cum-duty-benefit and recalculated the duty amount as Rs. 8,52,787/- and accordingly imposed interest and penalty. Being aggrieved by the order of the Ld. Commissioner (Appeals), the appellants are in appeal before this Tribunal. 3. The Ld. Counsel Shri. M. A. Mudimannan, Advocate representing the appellants reiterated the contentions raised in the grounds of appeal, and filed the written submissions on the following various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of demand by the authorities. In particular, for a sample he has produced the copy of RG1 for the period 01.09.1999 to 15.09.1999 and shown the differences of about 9,000 kgs between the Show cause notice and RG-1 Register. The said discrepancies clearly would prove that the quantification of the alleged clandestine removal has been arrived without properly going into the records and documents relied upon but has been done is haste and arbitrarily. 3.5. He vehemently argued that the entire demand is based only upon the statements which were retracted immediately and he further stated that the entire demand is based upon the private diary maintained by the Factory Manager and his statement but it was retracted. He further argued that other than the retracted statements, the allegation was not corroborated with any other tangible evidences like Transportation, supplier details, purchaser details, transporter details , power consumption etc., Particularly, in clandestine removal cases the onus is on the department only to prove beyond all reasonable doubts with other corroborative evidences. 3.6 He submits that even if private records are discovered during raid, it is nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AR will not be applicable to the present case, since in the referred case, the statements were not retracted, there was no denial of cross examination, no violation of principles of natural justice and there is also no dispute in quantification of demand, no other corroborated/tangible/positive evidences to prove the clandestine removal of the finished products. 6. Heard both sides and perused the records and examined the written submission & citations submitted by the appellant as well as the Ld. AR. 7. The issue for consideration in the present case is as to whether the appellant herein had indulged in the manufacture of dutiable cotton yarn in cones without accounting the same in the statutory records and clearing the said cotton yarn in cones clandestinely without payment of duty and without recording the said transactions in the statutory records during the period from 1.1.1999 to 17.9.1999. I find that in the instant case the lower authorities have determined the duty liability of cotton yarn manufactured and cleared illicitly without payment of duty based on recovery of private records such as diaries, daily production reports containing the data of annual production as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand for clandestine removal was made based on assumptions and presumptions. In the instant case, however, I find that the department has raised the demand based on private registers coupled with confessional statements along with materials which were wholly manufactured and kept ready for dispatch. All these factors cumulatively would show that the conclusion arrived at by the authorities cannot be faulted with. While it is true that the burden to prove clandestine removal is on the department, it cannot be expected of the department to prove the same with mathematical accuracy and precision as clandestine removal is a suruptious activity and in such type of cases, direct evidence would very rarely be forthcoming which would prove a case beyond all reasonable doubts. As stated above, in the facts of the present case, the clandestine manufacture and removal stands proved. 10. Accordingly, I find that there is no reason to interfere with the order passed by Commissioner (Appeals). Accordingly the appeal is dismissed as devoid of merit. 11. With regard to appeal of Shri C.Sundaramurthy, the appellant who has filed appeal for waiver of penalty of Rs. 10,000/- imposed on him und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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