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TMI Blog2008 (7) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... on was made on the basis of certain Note Book and loose sheets recovered from various places of their premises. 3. The Appellants submit as follows : The discussions and the findings of the Ld. Adjudicator in para 5 of the impugned order are not maintainable as we are not of the same opinion as because if the production is to be suppressed, that by itself cannot be conclusive to establish clandestine non duty paid removal, since production removal are two distinct relative acts. If unaccounted production was being resorted by us, some material indicating unaccounted production and or removal of recent origin on date of search would have been found on the visit on information and by surprise by the officers. No such material exists. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge of pertaining to clandestine removal. 4. The allegation in the Show Cause Notice is that On the basis of Intelligence, the Anti-Evasion unit of Bolpur Commissionerate visited the unit of M/s. K.I.C. Metaliks Ltd. (formerly M/s. Kajaria Iron Castings Ltd.) Raturia, Angadpur, Durgapur on 18-2-2004 and seized some incriminating documents relating to production of Pig Iron and Iron Skull. In the said search they recovered a notebook marked Sl. No. 46/KICML/F/2004 of the seizure list dated 18-2-2004 appeared to be maintained by Sri Arun Kumar Das, Manager (Operation) of KICML, which contained inter alia particulars of Mini Blast Furnace Tap on and off time, production of Pig Iron and their metal analysis. Then the recordings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of statutory records like RG-1 etc. have been done away with after introduction of new rules with effect from 1-7-2000. Now the assessees are to self assess their goods and clear on payment of duty of central excise duty and with introduction of self assessment system the onus of proof has definitely shifted from department to the assessee. Whereas prior to 1996, the department had the onus to prove any allegation, on and after 1996 onus lies with the assessee to prove that the allegation made against him is not sustainable with cogent reason. This is the reason I beg to differ from the Hon ble Supreme Court orders in the case of Triveni Plastics reported in 1994 (73) E.L.T. 7 (S.C.), Oudh Sugar Mills v. U.O.I - 1978 (2) E.L.T. 172 and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be permitted to use judgments of different judicial forums as an umbrella to avoid the scrutiny of tax-enforcement officials. If judgments are made applicable with unthinking rigour it can often lead top situations that are both ridiculous and unjust. The Appellant expects the Department to apply the concept of notebook evidence as a mechanical and mindless ritualism. Are we to blindly believe that a person of the stature of Sri. Arun Kumar Das who holds the key position of Manager (Operations) was playing Sudoku in his office? Are we to believe that the meticulous figures and calculations maintained scrupulously by Sri. Arun Kumar Das are all fantastical outpourings of an incoherent mind? Justice demands firmness and scruple, but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Lower Adjudicator, he could have appeared to throw light on the figures and accounts. Again, he has made himself scarce. The Appellant was put on notice by way of the impugned Show Cause Notice that the Department was placing reliance on the records maintained by their Manager (Operations). They could have easily ensured the presence of their Manager (Operations) before the Lower Adjudicator to substantiate the truth. Instead, by way of a well calibrated exercise, the Manager (Operations) has been kept away from the proceedings and the Appellant has taken upon himself the prerogative to label the seized records as Notebook . That brings us to the final question as to who has to decide whether the seized records are Notebooks or n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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