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TMI Blog1998 (5) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipal Barrier at Taruwala at a distance of about one kilometer from the appellants factory as well as from the Police Barrier at two other points namely, Behral and Kala Amb and also on the basis of entries relating to the movement of trucks belonging to the appellants, it was alleged that the appellants had removed 53 trucks loaded from the appellants factory without excise documents and without proper G.P. 1s. On the basis of information collected by the Central Excise Collectorate a show cause notice was issued to the appellants on 4-1-1994 which related to the alleged removal of excisable goods between the periods December, 1989 and March, 1990. 3. The appellants contested the allegations and were heard by the Collector before passing the impugned order. 4. On behalf of the appellants it was contended that the appellants had nothing to do with the 822 Cylinders seized by the Police on 25-6-1992 and the appellants had been implicated in the matter mainly on the basis of the statement given by Shri Ram Bilas Choudhary who had reason to be biased against the appellants. Shri Ram Bilas Choudhary was an ex-employee of the appellants firm who had some enmity against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cylinders and scrap as also the statement that cylinders were removed clandestinely. They disputed in particular the statement of Shri Ram Bilas Choudhary that 400 Cylinders could be manufactured during the night shift of 12 hours. Another point disputed by the appellants is that the trucks carried 400 Cylinders at a time. The Collector had given a finding that the Municipal authority s record maintained at Barrier cannot be called into the question because the same were being maintained in public interest. The appellants have contended that the allegation of clandestine production and removal of cylinders for prolonged period of four to five years was not credible, since the factory was under the supervision of the Officers of Indian Standards Institution who were present whole time in the factory when the manufacture of cylinders took place. The several processes like drawing and cutting of sheets, bending, cut pieces welding, heat treatment, metal bending, etc. were carried under supervision of the said Officers and the entire process took two to three days. Besides, Representative of the buyer company, like Indian Oil Corporation, also simultaneously took samples of the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in its entirety since another Director of the appellant Company, Shri Goel had in his statement dated 16-8-1993 stated that sometimes the trucks were also lent to other parties for transporting stones, etc. As regards the assumption of the Collector that the trucks carried 400 cylinders each time, reference was made to Annexures 1 to 4 of the SCN to show that the trucks did not contain 400 cylinders each time it had moved. In this connection, ld. Counsel referred to the Serial Nos. 1, 6 and 8 of Column No. 5 of the Annexure 1, Serial No. 1 of Annexure 2 Serial Nos. 2, 10 and 11 of Annexure 3, Serial Nos. 1 and 2 of Annexure 4 and Serial No. 5 of Annexure 5. The appellants also strongly disputed the assumption of the Collector that 400 cylinders could be manufactured within a period of 12 hours in a night shift. They contend that the manufacture of Cylinders takes two or three days and it was impossible to complete all the processes within a period of 12 hours in a night shift. 5. On behalf of the Department, ld. SDR submitted that there was enough evidence on record to show that the appellants had received large amount of sheets illegally. This tallied with the number of cyl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bureau of Indian Standards cannot also be equated with the presence of an officer of Central Excise when a factory is under the physical control regime of the Central Excise Rules. However, we observe that the entire case of the Department has been built on the entries maintained at the Police Barrier, Sales Tax Barrier and Municipal Barrier. The records maintained by these barriers record the movement of vehicles for the purpose of collecting octroi in the case of Municipal barrier and Sales Tax in the case of Sales Tax barrier. At the Police barrier the check is admittedly for routine security purposes. As has been given out in the statement of the driver of the trucks, the entries are made mostly on the basis oral declarations as to the contents of the goods carried in the vehicles at any given time. It cannot, therefore, be categorically stated that each time a vehicle passed through a barrier, the vehicle carried cylinders at the optimum number 400 cylinders. The appellants have disputed the findings of the Collector that the two trucks belonging to the appellants were used exclusively for transporting the cylinders and scrap. They have contended that there was no admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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