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TMI Blog2009 (9) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of law and facts in both the appeals are common, they were heard together and are being disposed of by this common order. 3. Proceedings were initiated on the ground of clandestine removal of the goods by the respondents during the period from 9-2-93 to 27-9-95 (1992-93 to 1995-96) weighing about 3879.350 MT of ordinary portland cement and involving central excise duty amounting to Rs. 7,20,154.75p by using parallel documents like GPIs, invoices, challans, Bills, cash memos and GRs, etc. The show cause notice was issued and after hearing the parties, the Additional Commissioner, Meerut confirmed the demand to the tune of Rs. 7,20,154.75 under erstwhile Rule 9(2) of the Central Excise Rules, 1944 read with the proviso to sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion filed by these appellants were heard on 2-1-2009 and were allowed and their appeals were restored to Board. Thereafter the appeals came up for hearing on 17-2-09 but as none was present for the respondents, the appeals were adjourned to 31-3-09, on which date at the request of the respondents representative, the appeals were adjourned to 2-6-09. The appeals were not listed for hearing on 2-6-09 but were listed on 20-7-09. However, the same did not reach for hearing on that date. The appeals were posted for hearing on 20-8-09 on which date the same were adjourned at the request of the advocate for the respondents with a clear intimation that such adjournment would be the last opportunity and no further adjournment would be granted to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for adjournment, therefore, is rejected. 5. Referring to the merits of the case, learned Jt. CDR submitted that the entire case is based on documentary evidence and most of the documents are in the handwriting of the Director of the Company and this has been confirmed by the handwriting expert. Only contention which was sought to be raised on behalf of the respondents was that the report of the handwriting expert was biased and therefore, could not be relied upon. And, further that the documents produced on record were fabricated by the department. In view of the handwriting expert s report, the allegation made regarding fabrication of the record, according to the learned Jt. CDR, is totally without any substance. The Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation about such details could have been corroborative piece of evidence in relation to documents seized from the premises of the respondents. 7. It cannot be disputed that allegation of clandestine removal of manufactured goods by the manufacturer is an allegation of serious nature and therefore, Department is expected to establish the same by convincing and tangible evidence. The law in that regard is well settled. What could be a convincing and tangible evidence in a given case would depend upon the facts of each case. It cannot be forgotten that in a case where the evidence comprises of documents in the handwriting of the assessee himself which is proved to be so by the handwriting expert s opinion and further the same is not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing so, the finding by the Commissioner (Appeals) about the total absence of investigation to corroborate the evidence produced by the department is totally contrary to the material on the record, and therefore cannot be sustained. 9. Once it is clear that the evidence placed before the adjudicating authority clearly establishes the factum of clandestine manufacture and removal of goods and no cogent evidence being produced by the assessee to counter the documentary evidence produced by the department and as documentary evidence produced by the department discloses the quantification of the product clandestinely manufactured and removed from the premises of the respondents, and the same establishes positive acts on the part of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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