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TMI Blog1998 (5) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... is that they cleared their products without accounting for and without payment of C. Ex. duty and stored such goods in their godown (shop) in the name of M/s. Metal Export, Valsad. Pursuant to an intelligence, a batch of C. Ex. officers visited the shop on 8-2-1993 which was found locked and as per the enquiries conducted with the neighbouring shops, they went to M/s. Mukesh Metal Industries Pvt. Ltd. Accompanied by Shri Shankaran Vyas, Manager of the assessee and Shri Ishwarbhai Maharaj, driver of the assessee, the team visited the shop again with the keys and searched the shop. The officers found 7,140 kgs. of brass pipes/tubes valued at Rs. 8,92,500/- without any duty paying document which were seized under panchnama dated 8-2-1993 and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondents. On considering the submissions, it is seen that the grounds of appeal follow the same lines as the reasoning in the Dy. Commissioner s Order which has been set aside by the impugned order. It has been urged that Commissioner (Appeals) finding that search of Metal Exports premises had not been carried out in the presence of any responsible person from that firm is immaterial because of the admission of Shankaran Vyas before panchas that goods kept in Metal Exports premises were those cleared from Mukesh Metal industries without payment of duty, and, in any case the respondents have failed to establish their case by cross examining the panch witnesses. But this contention fails to carry conviction because of the fact Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obtain it only four months after the seizure. It is not that Shri Vyas disappeared from the scene after the seizure. 4. So also the Department missed out on the earliest opportunity getting the version regarding the goods seized from Metal Exports when the seized goods were shifted from the original premises on 16-2-1993 when one of the partners of Metal Exports Shri Jayesh Shah was present. It may not be mandatory to record statement immediately after seizure, but it passes one s understanding why this was done in the facts of this case, especially in the circumstances when the seizure had been made from the Metal Exports premises without the presence anyone of any status belonging to that firm. 5. It is further seen that the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Exports having taken place in the absence of its owner, giving no opportunity to them to explain the position for four to five months, and not accepting the explanation when they did so in a statement branding it as after thought. We are also of the view that Commissioner (Appeals) is right in holding that the Department instead of rejecting the explanation of Metal Exports relating to the goods under seizure outright, the goods should have been compared with documents produced with reference to quantity, quality and weight. The Commissioner (Appeals) has gone into the evidence produced having found it acceptable and on an appreciation thereof, has concluded that the duty paid character of the goods under confiscation has been established ..... X X X X Extracts X X X X X X X X Extracts X X X X
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