TMI Blog2017 (3) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... athematical precision as such a case involves deliberate and well thought out modus operandi to evade duty - appeal dismissed - decided against appellant. - Appeal No. E/1605- 1069/2009-Ex [DB] - Final Order no. 52034-52038 /2017-EX[DB] - Dated:- 1-3-2017 - Satish Chandra, President And Shri V. Padmanabhan, Member (Technical) Sh. J. S. Sinha, M. P. Sahai, Rupesh Kr., Sh. Aditya Kr., Advocate for the Appellant Sh. R.K. Manjhi, DR for the Respondent ORDER Per V. Padmanabhan The appellants / assessee (M/s KPP) are engaged in the manufacture of gutkha in pouches bearing brand names of Rajshree and Safal having MRP of ₹ 1 per pack. Gutkha is subject to assessment of duty under section 4A of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to pay the Central Excise duty in respect of the detained goods and to furnish bond and bank guarantee. The goods were ordered for provisional release on submission of bond and bank guarantee by KPP. They also deposited the full amount of duty involved. The other vehicles which were also seized were also ordered for provisional release by accepting bond and bank guarantee. 3. M/s. KPP vide their letter dated 04.11.2006 submitted photo copies of some invoices issued by them during the period 05.07.2006-14.10.2006 claiming that seized 2404 packs of gutkha were cleared from their factory premises under these invoices. During the course of investigation the statement of Shri R P Tripathi, Director of M/s. KPP was recorded. He stated that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the duty due on these 2404 bags by taking the view that these goods are not covered by these 22 invoices submitted by the appellant assessee. He further concluded that the 2404 bags of gutkha were clandestinely cleared without payment of duty. Accordingly, he has confirmed the duty demand along with the interest and penalty. Aggrieved by the impugned order the present appeal has been filed. 6. Heard both sides. 7. In the present appeal, the appellant-assessee has reiterated the same grounds and claimed that the duty on 2404 bags of Gutkha has been paid twice one at the time of original clearances claiming that these goods are covered by the 22 invoices issued between 8 14 , October, 2006. The duty has been paid a second time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 invoices claimed by the assessee as having been issued between 8th and 14th October is claimed to cover the 2404 bags seized in Raipur. From this, it is evident that the exceptionally large production and clearances of Gutkha claimed during the first fort-night of October, 2006 is a clear manipulation of the records of the assessee. It leads us to the reasonable conclusion that the 22 invoices claimed to have been issued by the appellant assessee and claimed to be covering the seized 2404 bags of Gutkha have been issued with back date with a view to covering up the clandestine removal of goods from the factory. The claim of the appellant that the entire quantity of Gutkha seized was sold on cash sale basis to unknown persons is diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landestine 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. 12. We are in agreement with the findings of the adjudicating authority in the impugned order on the above issues, for the reasons explained in detail by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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