9911796707
TMI Blog2004 (3) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... cts that on the basis of specific information that they were indulging in suppression of production of goods and their removal without payment of duty, the Central Excise officers visited their factory premises on 4-12-1998 and detected shortage of 37.262 MT of M.S. Round and recovered 32 nos. of duplicate set of invoices showing clearances of 378.150 MT saria without payment of duty; that the officers also searched the residential premises of Shri P.N. Mishra, authorised signatory and recovered certain incriminating documents. The scrutiny of these documents revealed that the respondents had cleared 61.060 MT of saria without payment of duty and that they had not accounted for 127.165 MT of ingots received in their factory, which was recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of invoices from an isolated servant quarter of the company may not be conclusive piece of evidence to prove clandestine removal, particularly when scribe of the said invoices was not examined and mere recovery of invoices, showing despatch of ingots to the respondents, may not be the supporting evidence. 3. Learned D.R., further, submitted that the documents were recovered from a room situated within the factory premises in the presence of witnesses; that the examination of these invoices reveal that the date of removal of quantity, value and duty had been filled in these invoices in the same manner as was done in their invoices duly accounted for in the statutory records; that P.N. Mishra had admitted that these invoices were pre-au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Commissioner may be revived by setting aside the impugned Order-in-Appeal. 4. On the other hand, Shri Lajja Ram, learned Advocate submitted that during the relevant period, the respondents were paying duty on the basis of annual capacity of production under Section 3A of the Central Excise Act and as such there was no incentive to remove the goods on unauthorised documents or documents; that the authenticity of the recovery of 32 invoices was not verified; that the Adjudicating Authority has simply given a finding that mere fact of dispute with their ex-employee cannot ipso facto dis-prove authenticity of the documents; that Shri Rajender Prasad, handwriting expert has given his opinion that the signatures were not of Shri Suraj Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of electricity, excess/shortage of inputs in stock, etc. are necessary. 5. We have considered the submissions of both the sides. In the appeal, filed by the Revenue, there is no averment about the loose slips recovered from the residential premises of Shri P.N. Mishra. In absence of any ground taken in respect of demand raised on the basis of these loose slips and subsequently set aside by the Commissioner (Appeals), the setting aside of the demand as such has not been challenged. To this extent, the impugned Order-in-Appeal stands unchallenged and, therefore, is upheld. We observe from the impugned order that the Commissioner (Appeals) has examined the submissions made by both the sides and came to the conclusion that Shri Suraj Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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