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TMI Blog2009 (1) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (J)]. All these three appeals are being disposed off by a common order as they arise out of the same impugned order of the Commissioner vide which duty of Rs. 35,82,394/-, BED and of Rs. 1,06,344/-, SED stands confirmed against M/s. Bhandary Industrial Metals Pvt. Ltd., on the allegations and findings of clandestine removal. In addition, Modvat credit of Rs. 12,15,412/- stands denied to the said appellants on the allegations that the dealers, from whom they have received the goods, had availed the credit on the basis of duplicate copies of the invoices issued by the inputs manufacturer. In addition, penalties of Rs. 6,25,000/- stands imposed on other two appellants, who are registered dealers, under the provisions of Rule 173Q(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were always received from BIM under the cover of invoices. 7. It was further found that the appellant M/s. BIM was availing Modvat credit of duty paid on the inputs received from two dealers, namely M/s. Aditya Non-Ferrous and Ferrous (India) Pvt. Ltd., (hereinafter referred to as M/s. Aditya) and M/s. Sha Mulchand Navalram Jain (hereinafter referred to as M/s. Mulchand). The said credit was being availed on the basis of invoices being issued by the input manufacturers. The scrutiny of the records maintained by the dealers revealed that the credit was availed by them on the basis of the original copy of the invoices issued by the manufacturer of such inputs i.e., M/s. Bhandary Metallurgical Corporation, Mumbai (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. 10. The above findings stands assailed by the ld. Advocate on the ground that apart from the said register, which also creates doubts about the allegations made in the show cause notice, in the light of the statements of various persons, there is no other evidence on record corroborating the charges of clandestine removal. We note that it is not the revenue s case that the said register maintained by BDM s godown was in addition to the records showing separate receipt of raw materials received under the invoice. This was the ONLY register maintained at the said premises. Admittedly, BIM had cleared the goods to the tune of 176 MTs to the said five units on payment of duty. It is the appellant s contention that the goods reflected in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery likelihood that only entries in respect of clandestine clearance by BIM have been made in the said inward register. The various expressions used by the Commissioner in his impugned order lead us to observe that the adjudicating authority is passing the impugned order on the basis of probabilities and likelihood of clandestine clearance and not on the basis of any evidence establishing beyond doubt the factum of clandestine clearances. 13. We also note that the recipient of the raw materials, allegedly removed clandestinely by BIM, do not stands interrogated by the revenue during the course of investigation. If the register maintained by the godown of BDM was for and on behalf of the said five units, they were best persons to explain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the same explanation holds goods in respect of five tips manufacturing units. We find the above logic in the realm of assumptions and presumptions. The clandestine charges cannot be made on surmise and conjunctions and had to be based on evidences to establish the same. We accordingly, set aside the confirmation of demand of duty in respect of clandestine clearances and imposition of penalties upon the Bhandary Industrial Metals Pvt. Ltd. on this count. 15. We further note that Modvat credit stands denied to the said appellants on the ground that the registered dealers, who had issued the invoices, had availed the Modvat credit on the basis of the original copies of the manufacturers invoice instead of availing the same on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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