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TMI Blog2010 (4) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... found in the premises. Being so, it is difficult to accept the contention that the unfinished products which were lying under the heap were not considered while arriving at the final figure by the authorities below. In the facts and circumstances of the case, therefore, there is no case for interference in the impugned order and hence the appeal fails and is dismissed. - E/4443/2004 - 426/2010-EX(PB), - Dated:- 27-4-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Saurabh Suman, Advocate, for the Appellant. Shri R.K. Verma, JDR, for the Respondent. [Order per Justice R.M.S. Khandeparkar, President]. - Heard at length the learned advocate for the appellants and learned DR for the respondent. Perused the written submissions filed by both the parties. 2. The appellants were engaged in manufacture of various types of Ferro Alloy products classifiable under chapter subheading 7202.00 of the Central Excise Tariff Act 1985 and were availing Modvat credit facility under the erstwhile Central Excise Rules, 1944. 3. It is the case of the respondent that on the receipt of an intelligence report that the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the goods remained in the heaps of sands in loose condition, the same were unfinished product and, therefore, were not entered in RG-1 register. It is their case that the production having been ascertained from the private records of the appellants, which was subsequently entered in the RG-1 register for removal thereof on payment of duty, there was no case for alleging clandestine removal. According to the appellants, the Department having totally ignored the fact that the RG-1 register was completed as and when the product was finally packed and was removed for clearance, there was no case for allegation of clandestine removal of the goods by the appellants. It is their case that the fact that unfinished goods were stored in the heaps of sands was not at all considered by the Department. 5. The authorities below on consideration of the materials on record arrived at the finding that on physical verification of the materials in the factory premises of the appellants conducted by the officers on 4th July 1997, it was revealed that the RG-1 register was found recorded upto 31st 1997, whereas the private record disclosed recording of production upto 1st July 1997 and taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ferro Manganese Standard Grade and 7.355 M.T. of Ferro Manganese Powder. The said finding which was arrived at by the Adjudicating Authority has been duly confirmed by the Commissioner (Appeals), in the impugned order while further agreeing with the observations by the Adjudicating Authority to the effect that : "Had goods found short on physical verification were entered in RG-1 register and were contained in the said Heap as pleaded by the appellants, the book stock of Ferro Manganese Standard Grade and Powder would never have gone below the said difference. Their RG-1 register clearly show that on number of the stock position, as per RG-1 register had gone down upto 2 to 3 M.T." This confirmation has been made while dealing with the appellant's case that there was a big heap of Ferro Manganese Slag that contained Ferro Manganese, i.e. their finished production which could not be retrieved during the period November 1995 to July 1996 and was shown as production in their production register and that subsequently they had retrieved 170.750 M.T. of Ferro Manganese Slag from the said heap and therefore the said quantity of the finished goods ought to have been incorporated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at by the authorities below regarding clandestine removal of the goods. 9. As rightly pointed out by the department's representative and not controverted on behalf of the appellants, besides being an undisputed fact that the calculations made by the authorities below in relation to quantity of the final product as well as raw materials which was available in the factory premises of the appellants on 4th July 1997 was based on the records, which were available in the factory premises of the appellants. Such records include RG-1 register as well as private records maintained by the appellants. It is pertinent to note that the private records were made available by the appellant's authorised signatory himself to the departmental officers at the time of inspection and the entries in the private records are not disputed by the appellants at any point of time. Obviously, therefore, nothing is brought to our notice which could create any doubt regarding the calculations made by the department on the basis of entries found in the said private records and RG-1 register. As already noted above, the charts which have been prepared on the basis of such records seized in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish any charge or accusation, it is not the quantity of the evidence but it is the quality of the evidence which is material. Beside, once the basic facts which are relevant to establish the clandestine manufacture and removal of the final product are not disputed by the manufacturer, the question relating to the absence of further corroborating evidence does not arise. Once it is the case of the appellants themselves that they had maintained detailed records pertaining to the production in the factory and such records having been produced, which apparently revealed certain quantity of production of goods having been suppressed and not disclosed in the statutory records, it certainly amounts to discharge of the initial burden of the department in establishing the case of the department about clandestine manufacture and removal of the goods by the manufacturer. The onus then shifts upon the manufacturer to establish that the entries in such private records do not relate to the production in the factory or that the entries do not relate to manufacture and removal of the goods. In the case in hand, the appellants have totally failed to discharge his onus. In such circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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