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TMI Blog2012 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ound nor any difference in the stock was found. The officers were carrying nine invoices with them which on verification with the records maintained by the appellant were found to be parallel ones since goods had been removed under invoices with the same invoice number to other parties on payment of duty. Shri Amit Singala, the director of the appellant company (second appellant) was present and he had stated that he was not involved in day to day operations and he would verify the records and also inquire about non accountal of the invoices in their records. Thereafter the appellants promptly paid the duty and the interest involved. Subsequently a statement of Shri Amit Singala was recorded on 15-2-08 wherein he admitted the removal of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veli v. SSD Spinning Mills Ltd. reported in 2008 (222) E.L.T. 392 (Tri. - Chennai). As regards the decision of the Tribunal in the case of Tanna Electronics v. C.C.E., Mumbai reported in 2005 (186) E.L.T. 312 (Tri. - Mumbai) relied upon by the lower appellate authority, he submits that in the case of Tanna Electronics besides the statement, there was recovery of duplicate chits from the applicant company and also from the distributor's premises besides voluntary deposit of duty. The Tribunal took note of all these factors to come to the conclusion that there was clandestine removal. In this case other than recovery of parallel invoices, there is no other evidence in support of clandestine removal. As regards the director's statement, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of day to day operations and he would inquire into the issue and explain the situation. Subsequently when his statement was recorded on 15-2-08, even though he admitted clandestine removal in his statement, he promptly submitted a representation on the same date denying the allegation and explaining with the authorized signatory had left the company and thereby hinting that this could be the mischief of the authorized signatory. Even though this representation was given on the same day and was taken note of in the statement itself, I am surprised to find that the officers chose to rely upon the statement given by the director contradicted by him on the same day without making any efforts to conduct further investigation. The parallel invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cotton yarn in hanks. The officers conducted verification with the buyers in the case and the buyers had admitted that originally the invoices for cone yarn were given to them but later substituted by invoices showing clearances of hank yarn. One of the traders denied having any transaction with the spinning mills. The transporters' statement was also recorded and the transporters also agreed that the cone yarn has been transported. However, the Tribunal did not find the evidence sufficient and observed as follows : "5. We have considered the submissions. Learned SDR has banked on the theory of probabilities and has contextually referred to the decision of the Hon'ble Supreme Court in the case of Collector of Customs, Madras & Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders cited by SDR was rendered by the Hon'ble Supreme Court and another by the Hon'ble High Court of Gujarat. Both the cases were in relation to proceedings under the Customs Act and none was in relation to any demand of duty. In the case of Roxy Enterprises (supra), the allegation of the department was that the party had clandestinely manufactured and removed excisable goods without payment of duty. That case was established by quantitative statements furnished by the party to their bank, stock taking report of the bank etc. Neither any such evidence with acceptable authenticity is available on record in the present case, nor any of the documents/statements relied on by the appellant is available. Demand of any amount of duty must have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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