TMI Blog2001 (6) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants. 2.The facts giving rise to these appeals may briefly be stated as under : 3.Appellant no. 1 company was engaged in the manufacture of ordinary portland cement while appellants Nos. 2 and 3 were working at the relevant time as its Managing Director and General Manager respectively. On 8-12-95 the factory premises of the company were visited by the Preventive Staff of the Central Excise Division, Aligarh and one Shri V. Gupta who introduced himself as production incharge was present. On conducting search of the store-room empty bag register containing entries for the period 1-4-95 to 7-12-95 and note-book (marked as store carrying entries for the period 4-12-95 to 7-12-95) were recovered. These documents were resumed and on scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoked as they had been filing RT 12 returns every month regularly and that their records were also regularly audited and no objection at any time was raised by the Excise Department. 4.The Commissioner, however, did not accept the version of the appellants and passed the impugned order confirming duty and imposing penalties on them, as detailed above. 5.The learned Counsel has assailed the validity of the impugned order of the Commissioner by contending that the empty bag register and the note-book allegedly recovered from the store of the appellants could not be legally used as an evidence against them for computing their production and evasion of the duty amount as their authenticity was never accepted by them and the entries ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ag register were made by him and the same were correct. Otherwise also the statement of this witness could not be attached any legal value as he was never submitted for cross-examination in spite of the request by the appellants. His statement was recorded at their back and the appellants were entitled to seek his cross-examination for testing his veracity. Even statement of Shri B.K. Sood, appellant could not be made use of as his cross-examination by the appellants, was disallowed without any sufficient cause by the Commissioner. No material on the record has been brought to our notice by the SDR to corroborate the correctness and authenticity of the entries made in the empty bag register. Therefore, on the basis of unproved/unauthenticat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the consumption of the electricity that there had been clandestine manufacture and removal of the goods by the appellants during the period in question (August, 1993 to December, 1995). 10.In Padmanabh Dyeing Finishing Work v. CCE, Vadodara - 1997 (90) E.L.T. 343 it has been observed by the Tribunal that in the absence of direct evidence regarding removal of the goods without payment of duty, electricity consumption was not enough to work out the production power of the assessee. To the same effect is the ratio of the law laid down in Hans Castings Pvt. Ltd. v. CCE, Kanpur, - 1998 (102) E.L.T. 139 by the Tribunal it is well settled that suspicion, however, grave cannot take place of legal proof. It was for the Revenue to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not on the statute during the period, as the same was introduced in September, 1996. 13.The imposition of penalty under Rule 173Q of the Rules on the company in view of the facts and circumstances and the period of duty liability proved to be of only four days (4-12-95 to 7-12-95), does not stand justified and as such the same is set aside. 14.Similarly, there is no material on the record to justify the imposition of penalty under Rule 209A of the Rules, on appellant nos. 2 and 3. They were employees of the company appellant no. 1 at that time and there is evidence to attribute to them commission or omission of any act which resulted in evasion of duty by the company. Therefore, the same is set aside. 15.In view of the discussion m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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