9911796707
TMI Blog1997 (6) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... (TOMCO) now merged with M/s. Hindustan Lever Ltd. (HLL) under an Agreement and were supplying the same packed in polybags/HDPE woven bags laminated as per the designs of TOMCO / HLL . As the appellants were using the Brand Name of other persons, the detergent powder was being cleared by them on payment of Central Excise duty. 1.2 The appellants factory was visited by their jurisdictional Central Excise Officers on 2-2-1995, who conducted the various checks and verifications. During the course of verification, private record maintained by the appellants under the name and style - Material Outgoing Slips - was found by the Officers. On scrutiny of the said Material Outgoing Slips , it was noticed by the Officers that some of the despa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the semi-finished detergent powder was being sent to their factory by the appellants herein for the purpose of seiving and screening during the break-down periods. 1.4 Based upon the above facts, the appellants were served with a show cause notice proposing to confirm a duty-demand to the extent of Rs. 4,60,971.00 on the alleged ground that 173.850 M.Ts. of detergent powder was cleared by the appellants, M/s. H.K. Industries without payment of duty as reflected in the Material Outgoing Slips recovered from the appellants factory premises. The notice also proposed imposition of penalty. 1.5 After due adjudication by the Commissioner of Central Excise, Bhubaneswar, duty of Rs. 4,60,971.00 was confirmed against the appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged its burden to prove the clandestine removal. He, further, submitted that during the adjudicating proceedings, they have put on record the Stock Reconciliation Statement of raw-materials and finished goods regarding the relevant year duly certified by the statutory auditors, which was corroborated with the Raw-Material Register and RG-1 Register. He, further, submitted that the Department should have investigated the matter once again and should have looked into other statutory records maintained by them during the course of their business and the returns filed with the Sales Tax Authorities, Income-Tax Authorities under the Companies Act etc. for the purposes of establishing the clandestine removal. He drew attention of the Bench to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and put on record during the course of hearing. I find that the entire case of the Department is based upon the despatches as reflected in the Material Outgoing Slips . 5. As per the appellants, the despatch of the detergent powder as shown in the said Material Outgoing Slips is in respect of semi-finished powder which has been sent to M/s. H.K. Industries for the purpose of seiving and screening. I find that the appellants are maintaining Material Outgoing Slips in respect of the clearance of the finished detergent powder. Some of the slips are showing the despatches to M/s. H.K. Industries. Against these despatches no indication as regards the nature of the goods i.e. whether finished or unfinished, has been mentioned in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, I reject the said Debit Note as being of no evidentiary value. 6. As regards the burden of proof argued heavily by the learned Counsel, I find that the appellants have not disputed the fact of clearance of the goods to M/s. H.K. Industries. The Department having made out its case on the basis of Material Outgoing Slips have discharged their initial onus put upon them, showing the clearance of the goods without payment of duty, especially in view of the fact that the despatches as reflected in the said Material Outgoing Slips - are not being disputed by the appellants. The burden now lies upon the appellants to prove that the said despatches were, in fact, in respect of unfinished detergent powder. As I have already observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome out with any evidence to show that the bags cleared by them to M/s. H.K. Industries, were containing weight less than 50 kgs. per bag. On the contrary, I find that wherever they have cleared the samples in lesser quantities, the same have been duly mentioned in the Materials Outgoing Slips . The appellants have also not further challenged the finding of fact by the adjudicating authority that detergent powder was cleared by them in bags of 50 kgs. each. In the circumstances, the calculation of quantum of detergent powder removed clandestinely by the appellants herein, by applying the weight of each bag as that of 50 kgs., is justified. Accordingly, I do not find any merits in this contention of the appellants and accordingly, reject th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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