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TMI Blog2010 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of visit by the officers and the private records, the order of the original authority in confirming the demand and imposition of penalty is justified - order of the Commissioner (Appeals) set aside - E/1140/2007-SM(BR) - 515/2010-SM(BR)(PB) - Dated:- 5-5-2010 - Shri M. Veeraiyan, Member (T) REPRESENTED BY : Shri S.N. Srivastava, SDR, for the Appellant. Shri Atul Gupta, Advocate, for the Respondent. [Order (Oral)]. - This is an appeal by the department against the order of the Commissioner (Appeals) No. 26/RPR-I/2007, dated 31-1-07. 2.Heard both sides extensively. 3.The relevant facts, in brief, are that the officers visited the factory premises of the respondent on 19-11-03; they found the RG 1 and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Rules, 2002 Commissioner (Appeals) while upholding the demand of duty of Rs. 32,628/- and penalty of Rs. 32,628/- set aside the rest of the demand and penalty. 4.1 Learned SDR appearing for the department, reitereated the grounds of appeal and submits that on the date of visit by the officers, the respondents were found to have not maintained the statutory records for about two months; there was shortage of finished goods; comparison of the private records relating to raw material issued with form IV accounts clearly revealed excess issue of raw materials; private records in the form of production slips and the computerised records indicated excess production; private records maintained at the gate indicated unaccounted cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refute the same. Further, no owner of vehicles or drivers of the vehicles mentioned in the 'loose sheets' were contacted and their statements taken. No further statement was taken from Shri Ganguly, after MD of the respondent company disowned the records maintained by Shri Ganguly. Further, he submits that no buyers of the allegedly clandestine removed goods were contacted and their statements taken. In other words, the finding of the clandestine removal by the original authority is, therefore, not corroborated. Further the adjudicating authority was specifically requested to permit cross examination of Shri Ganguly "if adjudicating authority intends to give no credence to such documents". The adjudicating authority has not made available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have issued more quantity of raw materials for manufacture than what was mentioned in the form IV account. This discrepancy was said to be explained by the respondent by saying that the said loose sheets recovered from the factory were maintained by the labour contractors and same might relate to issue of raw materials in respect of other units. This explanation does not merit acceptance for the reason that the respondent company have failed to maintain statutory records though they were under obligation to maintain the same. 6.2 It is noticed that the quantum of clearances which were not covered by invoices were taken from the private records including the records maintained at the gate. The submissions of respondents that they d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination. 6.3 There is another valid reason for relying upon the records maintained by the security in charge. When the respondents have failed in their primary' obligation to maintain statutory records from 16-9-2003, the department cannot be denied the opportunity of relying upon private records recovered from the factory gate and from other parts of their premises. 6.4 Undisputedly, on the date of visit of the officers, there was shortage of stock of 15.928 MT of MS ingots even out of stock declared by them on 19-11-03 before the visiting officers. No explanation has been offered for such shortage either in reply to the notice or thereafter. Such a shortage found on the date of visit and private records indicating excess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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