9911796707
TMI Blog2004 (8) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/9 the Excise executive. 3. Consequent to an interception of a tempo on 17-1-1998, and verification of the records of the assessee-company s factory at Saki Naka Mumbai dealer premises and sales Godown at Bhuleshwar, owned and managed by the assessee-company after completing inquires a notice dated 15-7-96 was issued, alleging that the excisable goods found in the tempo intercepted 17-1-1998, and the Gate Pass (Invoices) covering the same, which were showing the time of preparation of that document and time of removal of the goods from the factory at 14.10 hrs. 15.10 hrs. was a duplicate consignment being removed in that tempo when it was intercepted. The first consignment having been removed at 10 hrs. and the figures 14 15 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1-1998. List of such gate passes (invoices) were listed as Annexure D to this notice. (ii) Amount of Rs. 13,28,051/- should not be demanded under Rule 57-I for having availed credit on invoices of Copper Scrap without valid documents. (iii) Penalty and interest not be determined. (iv) Confiscation of plant machinery under Rule 173Q(2) be ordered. 6. Commissioner, confirmed the demands as proposed, imposed penalty under Section 11AC Rule 57-I(4) with interest under Section 11AB Rule 57-I(5), ordered confiscation of Plant and Machinery under Rule, 173Q(2) offered a redemption fine of Rs. 1 lakh. Penalties under Rule 209A were imposed. Hence these appeals. 7. The Commissioner has found that on a careful looking at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixing 1 to 7 . The Annexure 1 to show cause noted in paras 2 3 as regards the modus operandi allege change from 10 hrs. to 15.10 hrs. Therefore finding of prefixing of 1 to 7.00 appears to have been arrived at, which is beyond the allegations in the notice and also appears to be a finding to overcome the challenge impossibility of a removal at 00 hrs. Since the factory does not work in night shifts, they could be no removal at 00 hrs. Since the factory works two shits, first starting at 7.00 AM, there cannot be immediately a removal at 7.00 hrs, as the tempo is a hired tempo and is required to be loaded which will taken same time and thereafter removed. That surely cannot be 7.00 hrs. The finding of Commissioner therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material consumption. Without raw material, unaccounted production cannot take place. The unaccounted manufacture is not proved. Removal is therefore a presumption of a product which is assumed to be manufactured. Therefore unaccounted presumed clearances cannot be upheld. 11. Reliance on the retracted statements without examining the deponents of such statement for cross-examination, the fact that the tempo driver, does not admit to all such removals as alleged would be fatal to the case of Revenue. 12. There is no material on record to establish that Copper Scrap has to discharge Octroi duty. Therefore reliance on failure to produce Octroi payment certificate/evidence cannot be a reason to approve find that such scrap did not come ..... X X X X Extracts X X X X X X X X Extracts X X X X
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