TMI Blog2000 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. There is a confirmation of further amount of Rs. 21,649.50 from Rajkumar Match Industries being the duty payable in terms of the calculations shown in the impugned order for clandestine removal during the period from 14-1-83 to 29-12-83 under Section 11A(2) of the Central Excise Act. 2.The case made out against the appellants are that they are engaged in the manufacture of matches falling under item 38 of the erstwhile Central Excise Tariff and were availing concessional rate of duty under Notification No. 22/82, dated 22-2-82. The officers visited the factory on 30-12-1983 and searched the premises in the presence of one K. Chelliah, a worker in the factory and scrutinised the RG-1 Register for 83-84. They recovered one private reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons cannot be considered as a reliable piece of evidence for confirming the demand. They relied on the judgment rendered in the case of Kashmir Vanaspati Pvt. Ltd. v. CCE [1989 (39) E.L.T. 655] wherein the Tribunal held in para 4 as follows :- I have gone through the records of the case and the arguments advanced before me. The only evidence on the basis of which duty has been demanded and penalty has been imposed in this case is a private note book seized from Shri Desh Raj, Contractor. This note book was maintained by the labourers engaged by Shri Desh Raj. I have seen the entries made in the note book on 21-1-1986, 22-1-1986, 5-2-1986, and 11-7-1986. I find that on 21-1-1986 there is an entry of loading 1275 tins and packing 1600 tins. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is overwriting in the entries without proper attestation and note book was maintained by the labourers and not by Shri Desh Raj, contractor, personally, I am of the view that this is not a dependable record to establish clandestine removal of vegetable products manufactured by the appellants unless the same is supported by other evidence, such as, raw material consumed, goods actually manufactured and packed etc. There is no such evidence on record. There is also no co-relation between the consumption of raw materials, vegetable product manufactured, packed and cleared. In the circumstances, it cannot be held that 956 tins of vegetable products were actually manufactured by the appellants and clandestinely removed from the factory without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the form of seizure of clandestinely removed goods or invoice or purchase of raw materials, etc. to corroborate the entries. Therefore, the judgment cited by the appellants support their case. This citation has been applied in large number of judgments and the same has not been overruled. We have also noticed that in similar matters pertaining to Match Industries, the Tribunal examined the issue of clearances of matches and clubbing of the clearances of various match units as in the case of A. Rathinam, Prop., Michael Match Works v. CCE [1992 (60) E.L.T. 451. The Tribunal examined the issue of clubbing of 8 match industries situated in the same compound and having a common trading agent. On a detailed examination of the evidences, the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and have discussed the same. The Apex Court in the case of Triveni Rubber and Plastics v. CCE [1994 (73) E.L.T. 7 (S.C.)] has also taken a view that on a reading of Rule 173E, the Hon'ble Apex Court cannot agree that the officer empowered by the Collector or the Collector cannot determine the normal production unless all the factors mentioned in the Rule are present simultaneously. It has been held that Rule does not say so nor is it capable of being so interpreted. It has been held that in a case like the one in question, where the accounts are found fabricated and untrue, the figures of raw material utilised or the particulars of labour employed may not be available. It is not the case of the appellant that even though acceptable mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
