TMI Blog2017 (4) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... eal allowed - decided in favor of appellant. - Appeal No. E/648/2011 - A/30471/2017 - Dated:- 16-3-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. B. Venu Gopal, Advocate for the Appellant Sh. P.S. Reddy, Assistant Commissioner (AR) for the Respondent ORDER [ Order Per: Sulekha Beevi, C. S. ] 1. The above appeal is filed against the order passed by the Commissioner (Appeals) who upheld the confirmation of demand interest and penalties. 2. The appellants are engaged in the manufacture of aluminium bottles and are registered with Central Excise Department. Pursuant to search conducted in the residential premises of Sh. Prabhakar who was then, the Manager of the Karnataka Metal Company (KMC), investigations we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly accounted in the statutory registers. There was no discrepancy with regard to the statutory registers maintained by the appellant. The appellant has maintained proper records for the consumption of raw materials, manufacture of goods using the raw materials and clearance of the finished goods on payment of duty. Though these records were scrutinised by the officers of the department no objection was raised. The department made enquiries at the end of KMC and there is no incriminating evidence against the appellant. The central excise invoices upon which the appellant received the inputs from KMC was furnished to the department. The statement of the Director of the appellant company was recorded without showing any evidence which was gat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order. He submitted that the private note books recovered in the course of search conducted in the residential premises of Sh. Prabhakar revealed entries which points to the involvement of the appellant herein. The appellant has been purchasing inputs, viz; aluminium rolled products from KMC as well as AAL. KMC is the first stage dealer whereas AAL is the manufacturer. That Sh. T. Chenna Reddy, Director of appellant company has deposed in his statement that they have availed credit on invoice dated 19.01.2004 issued by Sh. Prabhakar, Manager of KMC and invoice dated 03.11.2004 issued by AAL without actual receipt of goods. That these statements itself along with the statement of Sh. Prabhakar would establish the case of fraudulent avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the transportation of goods to the appellant company. The discussion made by the Tribunal in the case of Sree Lakshmi Industries (supra) is reproduced as under: 7. The main evidence relied by department is the private notebook resumed from the residence of Shri Prabhakar of KMC. In his statement dated 29-6-2005 Shri Prabhakar has deposed that the sale and purchase recorded in Notebook No. 1 were made by him in his personal level as a side business for which no permission was obtained from anyone or KMC. That the entries on the reverse side of Page No. 2 of the said Notebook No. 1 pertain to purchase of aluminium products by him in his personal capacity in April, 2003.Thus the entries do not reflect any connection with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of independent evidence the charges levelled against the appellant is not sustainable. The huge quantity of raw material that has been used by the appellant in manufacture of finished products during the period of allegation and the alleged diversion stands unexplained by department. In the view thereof I hold that the impugned order is not sustainable. 7. In several other cases at the stage of first appellate authority itself, the demands were set aside as in the case of M/s Impact Metals Ltd., M/s Khaitan Electrical Ltd., and M/s Prism Elec Ltd., etc. Same view was taken by the Tribunal in the case of M/s Adhikasri Electromech Ltd., Others (supra). Other than mere allegation that some entries were found in the privat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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