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TMI Blog2013 (9) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... gister was prior to the entry of 2855 containers. Merely because the said letter and the inward register was not available in the office of the Assistant Commissioner in the year 2008 by itself cannot cast doubt on the letter - The inability of the department to trace its own inward register cannot result in an adverse inference against the appellants - the Revenue’s stand that the letter was not locatable in the year 2008, cannot be appreciated - Apart from the visual examination of the said RT 12 return by the adjudicating authority himself, entertaining doubt about two handwritings on two different pages, there was no further evidence to support the said doubt entertained by the authority - The appellants had submitted the said report along with their reply filed in the year 2000, at which point of time the genuineness of the same was neither verified nor questioned by the authorities - The reasons for rejecting the RT 12 return by the adjudicating authority were not legal and valid reason. Non-denial of cross-examination amounts to violation of principles of natural justice or not depends upon the facts and circumstances of each case - If the reliance is placed solely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and machinery for purifying water and parts thereof etc. The dispute in the present appeal relates to clearance of poly carbonate bottles (hereinafter referred to as PC bottles) falling under Chapter Heading No. 3923.90 of Central Excise Tariff. It is seen that the said PC bottles were fully exempted from payment of duty under Notification No. 4/97 Central Excise dated 1-3-1997 and clearances were being affected by them, by availing the said notification as they fulfilled the conditions of the notification for no duty credit paid on the inputs as availed by them. However, the said notification was effective only up to 1-6-1998. Thereafter the Notification No. 5/98-C.E., dated 2-6-1998 was issued. In terms of the said notification effective from 2-6-1998, according to the Revenue the said appellant was not entitled to exemption in respect of PC bottles inasmuch as they availed Modvat credit on duty paid on the inputs used in the manufacture of other products i.e. electronic weighing scale. 3. One of the dispute relates to clearance of 80,000 PC bottles by the appellants during the period 2-3-1998 to 21-3-1998. Whereas the Revenue s allegation is that such clearance of 80,000 PC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ottles have been shown as cleared under each of invoice Nos. 1 to 50 in March, 98. (viii) Shri Thakorbhai Patel stated during the course of panchnama that statutory RG 1 Register from March 97 to March 98 for all commodities manufactured, except for P.C. bottles, was written by him on day to day basis and when he wrote the said Register, no entry was there on Page 20. The transaction dated 28-3-1998 on Page No. 19 was entered by Shri T.N. Patel in his own handwriting. Page No. 20 of the RG. 1 Register contain all entries of production/clearance of P.C. Bottles in March 98. As such, RG. 1 Register showing manufacture/clearance P.C. Bottles in March 98 was written later on. Further, the diary relating to production of P.C. Bottles, submitted by Shri Sunil Kumar Rathi, Production In-charge of P.C. bottle plant, during recording of his statement on 20-9-1999, does not show production of P.C. bottles during March 98. (ix) Shri Gopalsingh Ramsingh Bhandari, Security Supervisor, in his statement dated 17-9-1999 has inter alia deposed that invoice Nos. 1 to 50 in March 98 were not entered in Outward Register as no goods mentioned in the said invoices had gone outside the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat State, Ahmedabad. (xiv) Page 34 of one file containing pages 1 to 157 withdrawn from the office of M/s. Atco, Wadala, Mumbai, through panchnama on 17-9-1999 bears monthly sale in value terms effected from M/s. Atco, Daman, during May 97 and May 98. Shri Jayesh Patel in his statement dated 2-12-1999 has inter alia confirmed that the said statement of sales was prepared by him; that the sale value of P.C. bottles sold in the month of March 98 has been shown as Rs. 14,63,924/- comprising clearances only of invoice Nos. 276, 283, 328, 330, 331 to 350 issued from regular series; that invoice Nos. 1 to 50 were not in existence in the month of March 98 and since no such clearance as mentioned therein took place in March 98, he did not incorporate value of 80,000 P.C. bottles covered under the said invoices in the said sale value. Shri Jayesh Patel confirmed his said depositions again in his statement dated 25-2-2000 by reiterating that the said invoice Nos. 1 to 50 were prepared by him. (xv) M/s AHCL have been shown as the consignee in all invoices bearing Nos. 1 to 50 in question issued during the month of March 98, However, Miss Priti Vasavada, Manager Finance of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That Revenue relies on the statement of Shri Jayesh C. Patel, ex-employee of the appellant made on 2-12-1999 deposing that RG 1 register in respect of said 80,000 pieces was written by him in May and June, 1998 is not appropriate inasmuch as the said statement stands proved to be factually incorrect. According to the Revenue, out of total 82855 pieces claimed to have been cleared in March, 1998, the clearance of 2855 pieces in March, 1998 is not being disputed. If the said 2855 pieces were actually cleared in March, 1998, there can be no question of entries of these 2855 pieces being made in the RG 1 in May and June, 1998. (vi) It is further contended that the Revenue has admitted clearance of 2855 pieces in the month of March, 1998. The entries for the disputed clearances of 80,000 pieces from 1-3-1998 to 21-3-1998 are appearing before the entries of 2855 pieces on the same page of the RG 1. If that being so, the Revenue s allegation that the goods are manufactured in May, 1998 are cleared in June, 1998 cannot be upheld. (vii) Even otherwise, the Revenue s allegation that the goods were infact manufactured in May, 1998 but cleared after 2-6-1998 cannot be upheld inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exempted products from March, 1998 onwards and prior to that date they intimated the Central Excise officer that they would start new invoice book containing invoice Nos. 1 to 50 for the exempted goods. As such, they used said invoice book for clearance of 80,000 pieces out of total 82855 number of poly carbonate containers recorded in their RG 1 register for the month of March, 1998. After exhausting the said invoices from S. Nos. 1 to 50, they started using their regular invoice book which was being used for clearance of weighing scales and time recorders even for clearance of poly carbonate containers and cleared balance of 2855 containers in the month of March itself. All these clearances were reflected by them in the RT 12 return filed for April, 1998. 8. The appellants contention is that such documentary evidences are sufficient to demolish the Revenue s case which is based upon oral statements of various persons including by their Security staff posted at the factory gate for maintenance of outward register. They have further contended that the deponents of various statements have not been offered for cross-examination and as such, their statements cannot be accepted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard register would have been available with the department. No verification was got done at that particular point of time, neither was it contested by the Revenue that the said letter was not filed and is not available with the Revenue. As such, the Revenue s stand that this letter is not locatable in the year 2008, cannot be appreciated. 10. The appellants have further contended that the clearance of 80,000 pieces of poly carbonated containers was duly reflected in the RT 12 returns filed for the month of March, 1998, when the goods were exempted. The adjudicating authority has observed that the said RT 12 returns consists of two pages, the second page having been signed by the officer. He has further observed that the handwriting at page Nos. 1 and 2 are different. Accordingly, to verify the genuineness of the RT 12 return, a report was called from the jurisdictional Range Office, who vide his letter dated 16-10-2008 reported that the required RT 12 return could not be located/traceable despite sincere efforts. Accordingly, he has rejected the said RT 12 returns filed by the appellants. We note that apart from the visual examination of the said RT 12 return by the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also contended that production and clearance of said 80,000 pieces in March, 1998 were included and reflected in the provisional financial statement in the year ending 31-3-1998; which were published in the Business Standard on 1-6-1998 (the date prior to 2-6-1998) when the goods become dutiable. They supported the said statement when Chartered Accountant certificate certifying that the value of said 80,000 pieces stand included in the financial statement. While dealing with the said statement of the appellant, the adjudicating authority has observed that the financial statement is not giving any detail of manufacture and clearance of 80.000 pieces of poly carbonate bottles and the Chartered Accountants certificate produced in this regard may be an act of afterthought, [emphasis provided]. Hence, cannot be admitted as evidence. We do not appreciate the above reasoning of the adjudicating authority. The expression may be used by him is indicative of the fact that the adjudicating authority is not sure about the correctness or otherwise of the said Chartered Accountants certificate and has dismissed the same on surmise and conjecture. The said certificate having been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for preparing the invoices in May, 1998 showing the same for March, 1998, when the goods itself was exempted in May, 1998. 15. Similarly, the reasoning adopted by the adjudicating authority that the appellants were required to be issued invoice number consignment-wise and the vehicles could not carry the consignment, as shown in the invoices does not advance their case that the invoices were prepared in March, 1998 and goods were cleared in June, 1998. What could not be done in May, 1998, could also not be done in June, 1998. If the vehicles could not carry the consignment in one go in May, 1998 it could not carry the same in June, 1998 also. Such reference and reliance by the adjudicating authority does not advance the Revenue case that what was cleared in March, 1998 was in fact cleared in June, 1998. 16. For denying the cross-examination of various deponents of statements, we find that the Commissioner has referred to various decisions laying down that the non-tendering of cross-examination does not amount to violation of principles of natural justice. We note that as observed in such decisions (reproduced in the order-in-original), the fact that whether non-denial of cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of rejected bottles after repair . As such, he has held that appellants have cleared fresh manufactured bottles by showing them as rejected and repaired bottled. 19. The appellants in their appeal memo have contended that every time they received back the rejected bottles, an intimation under the erstwhile Rule 175H was filed with the Revenue and the same were duly accounted in the Form IV. Further, at the time of clearance after processing, intimation was again being given to the department and the processed goods were cleared under invoices giving the cross reference to the earlier invoices. As regards the ledger of M/s. Atco Health Care Ltd. it is the contention of the appellant that relevant invoice numbers and dates under which the goods were received were clearly indicated and these invoices refer to Rule 173H showing the said goods as fresh purchased by M/s. Atco Health Care Ltd. was clearly a mistake and same was rectified in their accounts in the next year 1999-2000 by making the necessary entries. They have also contested the said finding on the ground that raw material stock register for PC granules does not show the receipt of such a huge quantum of raw material so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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