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TMI Blog2007 (4) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... Tubes Ltd., alleging that they had taken more Modvat credit than the duty paid on the goods cleared by M/s. Mahavir Metal Industries, which resulted in recording of statement of appellant s Clerk Shri Sunil Dave, Central Excise Officers entertained a view that the appellants had been manipulating the quantity, value and duty shown in the gate passes used for clearance of their final products. Accordingly, a show cause notice dated 2-5-97 was issued to them alleging evasion of Central Excise duty, in terms of Annexures A , B and C appended to the notice, as per the allegations, mentioned below :- They issued Central Excise gate passes not containing a decimal point for clearance of goods from their factory. Depending upon whether a consignment in question was checked in transit or not, placement of decimal point on their copies of gate passes was decided and carried out. Thereby, in the assessment copies of gate passes submitted to the department, lesser quantity was shown as dispatched and Central Excise duty was discharged on such manipulated quantity. Shri Sunil Dave, Excise Clerk of M/s. Mahavir, in his statement, admitted to have carried out such manipulation in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no details of investigation carried out are forthcoming. 4. The Commissioner, vide his impugned order passed in de novo proceedings held as under. In respect of each annexure to the show cause notice :- As regards duty demanded and worked out vide Annexure A, it is evident from the depositions of Shri Sunil Dave in his statement recorded on 18-1-1994 under Section 14 of the Central Excise Act, 1944 that after the goods were cleared from the factory premises, he was getting directions over telephone from his employer from their Bombay Office and as per instructions received, he was manipulating all statutory records viz. Central Excise gate pass, RG.l Register, RG 3A Part II Register and P.L.A. Register, by putting decimal point at appropriate place so as to reduce the Central Excise duty payable by 1/10th of the actual duty payable on the goods cleared under respective gate passes. Shri Dave not only admitted the said modus operandi but also identified 22 such gate passes where he had carried out such manipulation and thereby reduced the quantity to 1/10th of the actual clearances. Shri Dave also categorically deposed in his statement, that such goods were cleared to their B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared excess quantity under the said four delivery challans and relevant gate passes as worked out in Annexure-B than the quantity which was declared in the gate passes and the duty was paid thereon. The quantity shown in the delivery challans of these gate passes is also meager, such as 311.200, 350.000, 430.000 kgs., which do not form a truck-load quantity and it would not be feasible to arrange a vehicle for transportation of such a small quantity from the factory premises in Valsad district to the Bombay office of M/s. Mahavir. Therefore, it is evident that the duty as worked out to Rs. 1,75,948/- in Annexure-B has been evaded by M/s. Mahavir by suppressing the actual quantity cleared from the department. In view of admission by Shri Dave about manipulation done by him in statutory records so as to lessen the actual quantity cleared by 1/10th therefore to evade payment of duty and further, the same being corroborated by the payment of octroi in respect of some consignments, the investigation officers scrutinized other seized triplicate copies of gate passes and sorted out another 21 gate passes, which did not figure in Annexure-A and Annexure-B, in respect of which similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . endorsed gate passes on which the quantity shown was altered by shifting the decimal points. The investigations carried out in this respect include the recording of statement of one Shri S.S. Dave, employee of M/s. Mahavir Metal Industries. He has inter alia stated that in certain cases as per the instructions of his employer, he manipulated the duplicate and triplicate copies of GPI s RG-1, PL/1, etc. by introducing the decimal point thereby reducing the quantity shown for example quantity of 3000 Kgs of copper rods initially dispatched to M/s. As such, we are of the view that the demand of duty confirmed on the basis of the said statement without any independent corroboration cannot be upheld. Mahavir Metal, Bombay was changed to 300.000 kgs by introducing a decimal point in the excise records once the goods are received in Bombay as informed on phone with suitable instruction. Thus there was evasion on 2700 Kgs of the goods. M/s. MTL have argued that they had taken lower credit as mentioned in the GP1 on the quantity actually received in their factory. Further on the face of the GP1, it was not possible for them to know about the alleged forgery M/s. Willington Associates, ..... 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