2005 (6) TMI 406

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..... emises of the appellants and found that they stopped production and the entries in the registers were all correct. There was no discrepancy in any of the aspects of manufacture and clearance from the factory. However, when the officers visited the premises of the appellant s dealers at Mumbai, they found 24 cartons of Bigen Instant Hair Colour as against 23 mentioned in the invoice. Hence, they seized the said cartons and proceeded with the investigation and issued a Show Cause Notice. The assessee s contention was that they had cleared only 23 cartons and it is supported by the statement of the transporters for being delivered only 23 cartons. The Peon of the dealer had mixed up with the earlier carton and the same had come to be recorded .....

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..... as on the ground that the description of the goods did not agree with that of the invoice and there was one excess carton. While physically there were 7 cartons of A variety and 17 cartons of B variety, the invoice reflected 10 cartons of A variety and 13 cartons of B variety. It is a fact on record that, irrespective of the difference in the variety of the goods, 23 cartons were received under the cover of valid invoice. The veracity of the invoice is not disputed by the department. There is no differential duty involved. Simply because there was a difference in the description of the goods, I am not inclined to accept that the goods were liable to confiscation. Hence the order of confiscation is set aside. As regards, the excess c .....

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..... iven by the Commissioner (A). The department found 24 cartons in the agent s premises in Mumbai as against 23 cleared by the assessee. With regard to the one excess carton, the assessee and the transporter had given explanation and the explanation has been found to be correct and verifiable from the documents seized from the assessee s premises vis-a-vis transporters. Unless the department produced evidence of excess production inasmuch as the assessee should have imported excess raw material, there could not have been excess production. There is no evidence from the Revenue to show that excess raw material had been purchased, excess packing material and other ingredients, purchased from market clandestinely and they have not been used for .....

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