9911796707
TMI Blog2006 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17,850/- and 8,92,500 valued at Rs. 44,625/- at Udaipur (Rajasthan) and Mandsaur (Madhya Pradesh) respectively on 26-10-2002. The proprietor of the assessee's unit admitted that they had clandestinely removed the Biri's under seizure without payment of duty. The proceedings were initiated against the Respondents and they paid the duty due on the seized goods. More investigations were carried out on sequence to the seizure resulting in issue of Show Cause Notices. The Original Authority in his order dated 26-6-2004 passed the following order :- "ORDER (A) The H.M. Biris 3,57,000 valued at Rs. 17,850/- and 8,92,500 valued at Rs. 44,625/- seized at Udaipur, Mandsaur (M.P.) respectively under O. R. No. 43/2003 Adjd, and 32/2003-Adjd are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no evidence and hence, dropped the proceedings. The Revenue has come in appeal against the impugned Order-in-Appeal on the following grounds :- (1) The Commissioner (Appeals) cannot brush aside the evidence brought out regarding clandestine removal and evasion of duty in the Order-in-Original No. 14/2004, dated 26-6-2004. (2) The Commissioner (Appeals) relied on the following case laws :- (a) Oudh Sugar Mills Ltd. v. UOI reported in 1978 (2) E.L.T. (J172) S.C. (b) Pilot Industries v. CCE, Mumbai reported in 2004 (173) E.L.T. 402 (Tri. - Mum) (c) Madhu Foods Products v. CCE, Hyd. reported in 1995 (76) E.L.T. 197 (Tri.) (d) Anil Sunil Trade & Investments (P) Ltd. v. CCE, Bang III reported in 2001 (129) E.L.T. 616 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that his factory M/s. Rahul Biris Factory manufacturers biri with Brand names "Golden - 99" and "Sai Sakthi Bidi", as "Raju", "Ramesh", "Mahender" and "Rajesh" for different consignments to avoid accounting in the books of his Company; that certain consignments of biris were booked by him or on his behalf by his factory worker Sri T. Venu, under fictitious consignors and consignee's names such as Raju, Ramesh, Rajesh and Mahender; that the description 'loose biris' in all the cases was given to avoid trans checks by the authorities; that is now prepared to pay the duty due on the goods, which were cleared without payment of duty. Thus there is a clear evidence of evasion of duty. (iii) The statement of Sri T. Venu the worker o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the submission of Respondent that after the booking of two earlier cases, the manufacturer would not venture into similar activity during the disputed period and there is no evidence produced by the Department to substantiate the allegation in the Show Cause Notice. (iv) The entire demand is based on earlier transaction. It is well settled that each transaction has to be examined on its own merits and the department to produce evidence in support of the allegation. (v) The Annexure to the Show Cause Notice would show that there is no mention about the invoice number, date or quantity covered under the said invoices. The demand has been quantified only on the basis of the Railway Receipts. Wherever there is reference to the invoices, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estine removal. The above order was challenged before the Commissioner (Appeals). The-Commissioner (Appeals) passed a very detailed order setting aside the order of the Assistant Commissioner on the ground that there is no evidence to allege the clandestine removal for the past period. After going though the impugned order, the grounds of the appeal and the cross-objections raised by the Respondents, I find that the entire case is based on the Railway Receipts. Some of the names found in the Railway Receipts were matched with the names available in the private records of the appellant's factory. On the basis of this finding, it has been assumed that the clandestine removal has taken place. There is no other evidence to substantiate the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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