9911796707
TMI Blog2006 (7) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... has admitted/confirmed that, the appellants had tampered 305 lot entries in the statutory lot register Nos. 8, 9, 10 11 by way of rubbing/erasing the unit figures in columns Nos. 9 to 13, to reduce the quantity of fabrics. Two digit figures deflated to one digit like 40/46/48 into 4, 50 into 5, 60 into 6, 70/72 into 7 and like. The erasing/rubbing is simultaneous in columns 9 12 and in some cases in column Nos. 10 13. The erasing/rubbing are not few, but in all 305 entries for which, fake challans were prepared and kept on record to match with correction/alteration so made in the lot register. The grey challans produced by some of the merchant were different from the original grey challans and many merchants did not produce duplicate copy of the grey challans, because they might have knowledge of difference in original and duplicate grey challans. Grey challan dated 24th March, 1989 of M/s. Vishnu Enterprises was unitially assigned lot No. 399 which was already given on grey challan dated 15th of March 1989 of the same party, which was subsequently cancelled and new lot No. 447 was allotted. One blank grey challan of M/s. Ginni Textile Mills was found duly inwarded by assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rey challan and entries of Form IV register with lot register and confessional statement of partner of the appellant and merchant. 3. Shri Prakash Shah, Advocate appearing for the appellants summarizes his submissions as follows :- There is no basis whatsoever, to sustain the findings of the ld. Commissioner that, the appellant illicitly received grey fabrics and cleared processed fabrics without payment of duty. It is pertinent to note that, for the entire period of nine and half months, the correction was found in Form IV register (which is the prescribed statutory register for raw material accounting -unprocessed fabrics in the present case) only on three dates, viz. 21st, 22nd 24th July 1989. All other entries made in Form IV register were found to be in order. It was demonstrated by the appellants in the reply dated 20th January 1992 (page no. 302) to the show cause notice, which is not disputed by the ld. Commissioner that the entry in Form IV register and the actual clearance after processing takes sufficiently long time and if the entries in the Form IV register were made subsequently made, it would have been detected by the visiting Central Excise Officers on 17th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive evidence of receipt of grey fabrics and supply of processed fabrics, the charge of clandestine removal is clearly not sustainable and more particularly when each of the merchants have confirmed having sent the grey pieces as shown in the respective challans. It is submitted that, non-examination of all 58 merchants itself is fatal to the case of the department and assuming without admitting, no duty can be demanded in respect of supplies allegedly effected to those merchants who were not examined by the department as there can be no basis to allege that those merchants did not produce duty paying documents or there could have been discrepancies between their challan and the appellants challan. It is further pertinent to note that, each of the merchants were required, under Notification No. 305/77, to file declaration giving the break up of the value of the processed fabrics including submission of copy of grey invoice to support of the value of the grey fabrics. No dispute is raised by the department, on the grey invoice produced by the merchants in their respective declarations. It is submitted that clandestine removal cannot be alleged on the basis of erasing/rubbing in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the department has taken unit figure by merely not adding O . It is submitted that admittedly, no evidence is brought on record to show any receipt of processing charges either in cash or otherwise in respect of alleged illicit removal of processed fabrics from any of the merchants. It is further submitted that, no evidence is brought on record to show higher consumption of electricity or other raw material required for processing of the fabrics. It is submitted that, for the alleged clandestinely removed processed fabrics of 18,09,817.50 L. Mtrs. the department was required to show the particulars of substantial higher consumption of electricity and other raw material. It is further pertinent to note that, no evidence is also available on record to show the alleged transportation of the illicitly receipt of grey fabrics and removal of processed fabrics. It is submitted that in the absence of receipt of the grey fabrics, there could be no removal of the processed fabrics. It is submitted that, the illicitly removed processed fabrics could have not been received without proper transportation and no material whatsoever is brought on record to show the alleged transportation of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the dispatch of higher quantity, transport of the same, receipt of the same by the merchant manufacturers or regarding higher payments for processing charges (for the higher quantity) from the merchant manufacturers or of any further onward sale of higher quantity by the merchant manufacturers. In a particular instance, the altered entry in the lot register is shown as 1283 mtrs. and the department alleges that the actual quantity should be 12830 mtrs. The difference in quantity alleged to have been processed and clandestinely cleared in this case comes to 11542 mtrs. There is no satisfactory explanation coming from the department as to what investigation has been done to trace such a huge quantity of 11542 mtrs. of processed fabrics which is alleged to have been removed without payment of duty. We also find that the period in dispute is from 1-1-1989 to 15-9-1989 spreading over a period of 8 months during which it is claimed by the appellants that the internal Audit party of the Excise department visited the appellants premises on 17-3-1989, a stock taking was done on 8-4-1989 and the Range Supdt. visited the premises on 3-6-1989, 27-8-1989 and on 6-9-1989. During these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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