TMI Blog2002 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... PE tapes, fabrics and sacks while other appellants are its Directors. The factory premises of the appellants was checked by the Anti Evasion wing of the Central Excise on 30-7-1999 and certain irregularities were found in the maintenance of the statutory records. The show cause notice was accordingly served on them on the allegation of having evaded the payment of duty by clandestine removal of the goods in the guise of wastage and also of having removed the raw material (inputs) on which credit was taken illegally. In the show cause notice, the duty demand was raised against the company, appellants No. 1, and penalty was proposed to be imposed on the other appellants. The appellants contested the correctness of the show cause notice. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld only be 5% of the raw material granules, while it was shown up to 10% and in fact the appellants had cleared the bags to the extent of 5% of the raw material without payment of duty. To substantiate this allegation, reliance has been placed by the Department on the Daily Production Report detailed at page 21 of the file, but we find that in those reports the wastage shown is only up to the stage of tape. Up to that stage the wastage had been shown to be 5%. In the annexure appended to the show cause notice, the Department has calculated the amount of wastage up to that stage and devided by the raw material received and shown in the RG-23A, Part-I, by the appellants, had concluded that wastage could be only 5%. But the appellants have pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to substantiate these allegations. The appellants were receiving the raw material for job work from M/s. Bag Poly International (P) Ltd. as well as from others. They have placed on record the accounts statement and the certificate furnished by that company to show that the said company supplied number of consignments during the period September, 1998 to July, 1999 to the appellants for job work. The correctness of these documents has not been doubted by the adjudicating authority by holding the same to be fake. The fact that that Manager of that company, Shri K.S. Mehra, had stated that only two consignments were supplied to the appellants for job work covered by two entries in the inward register dated 20-10-1998 and 27-10-1998, could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on the record to prove that there was any clandestine removal of the goods by the appellants on account of the alleged incorrectness of entries in the records. No statement of any buyer to whom they cleared the goods had been placed on record. In the case of Oudh Sugar Mills Ltd. v. U.O.I. - 1978 (2) E.L.T. (J 172), it has been ruled by the Apex Court that the conclusion regarding the clandestine removal of the goods should be arrived at from tangible evidence and should not be based on inferences involving unwarranted assumptions. This very view has been reflected in the case of (i) M/s. Amba Cement Chemicals v. CCE [2000 (115) E.L.T. 502 (Tribunal) = 2000 (90) ECR 265, (ii) M/s. Gurpreet Rubber Indus. v. CCE, Chandigarh - 1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egations regarding the shortage of raw material i.e. the inputs on which credit of Rs. 2,16,008/- was availed by the appellants had not been contested before us. Therefore, confirmation of demand of this amount by the Commissioner against the company, appellants No. 1, is upheld. But when the company had already debited credit of Rs. 1,15,025/- out of this amount and the Commissioner had appropriated the same, the demand is reduced to Rs. 1,00,983/-. 10.In the light of the discussion made above, the impugned order of the Commissioner as such cannot be legally sustained and is set aside, against the company, appellants No. 1, except to the extent of confirmation of demand of balance amount of Rs. 1,00,983/- (Rupees one lakh nine hundred an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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