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TMI Blog2009 (6) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... d invoices for the consignments loaded by them on 1-4-99 and there was no evidence regarding payment of Central Excise duty on the air-conditioners found in the truck, the same were seized. After investigation and adjudication process, the duty demand in respect of 70 air-conditioners seized amounting to Rs. 3,43,508/- and duty demand of Rs. 5,90,310/- on 108 air-conditioners which were found to have been cleared by the appellant without payment of duty were confirmed. Penalty was imposed upon the appellant and the transporter. Trucks were also confiscated and allowed to be redeemed on payment of redemption fine. In the present appeal, only the appellant company is before us and others have not filed appeals. 2. Learned advocate Shri J.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of invoices and giving instructions, he had left the factory. The transporter also had not given any inculpatory statement. He fairly admits that even though the time of removal in the invoice was mid-night, the truck driver stated that they had lifted the goods only in the morning. He also submits that a transporter has clearly stated that he had provided 20 trucks on that day in the morning and two trucks which were intercepted were provided by him at 7.30 in the evening. Learned advocate submits that in view of the fact that it was only a procedural omission and there were no double clearances and there has been no evidence let in by the department to show that the goods were cleared without payment of duty, the appeal may be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Clandestine removal is a serious offence and it has to be established by proper evidence. The departmental officer should have verified the machine numbers with invoice and should have made efforts to find whether there was duplication of machine numbers by the appellant. In the absence of findings in respect of these two aspects by original adjudicating authority, it has to be held that the appellants were assigning machine numbers correctly and the invoices covered the machine under seizure as well as those machines which were already removed on which the duty has been demanded by Revenue. We also found that the Commissioner (Appeals) has simply observed that the confessional statements have not been retracted and no evidence has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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