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TMI Blog2013 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... l these evidence lent credence to the case of Revenue without being demolished by Appellant. Discovery of parallel invoice as recorded by learned Technical Member in Para 16 of the referral order remained uncontroverted which was also an allegation in para 15 of the show cause notice dated 1-7-2007. Modus operandi of the appellant became questionable. It can be said that sufficiency’ relevancy and credibility of evidence available on record proved charge of clandestine removal of impugned goods without payment of duty for which both appeals fail and learned Technical Member has rightly held that the impugned order required no interference. - Decided against the assessee. - E/1118 and 1142/2005 - A/683-684/2012-EX(BR)(PB) - Dated:- 28-5-2012 - Dr. Chittaranjan Satapathy and Shri Ashok Jindal, JJ. Shri Sudhir Malhotra, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. ORDER In these appeals, the appellants are challenging duty, interest and penalty confirmed against them on the clandestine removal of the goods. 2. The brief facts of the case are that on information, preventive staff of Central Excise conducted investigation against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Nut Bolt, M.S. Angel, Pig Iron, Billet but the appellants are manufacturer of M.S. Ingots only. Furthermore, the whole demand is confirmed on the basis of the statements of two ex-employees of the appellants namely, Shri Sarabjeet Singh and Shri M.M. Saini after four years. Nothing has been brought as corroborative evidence in support of the allegation made against the appellants in the show-cause notice. The appellants never cleared any goods clandestinely. Moreover, no investigation was made to the buyers, with regard to the production capacity of the Ingots/Billets and procurement of raw material, consumption of electricity etc. to arrive at the conclusion of clandestine removal of the goods. No credence can be given to the statements of ex-employees without any corroboration. The onus to prove evasion of duty or clandestine removal of the goods lies on the department, which the department has failed to do so. Hence, the appeal be allowed with consequential relief. 4. On the other hand, the learned DR reiterated the impugned order and submitted that the statements given by the employees of the appellants are more relevant in this case and it was not denied by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question as transporting vehicles. 8. Apart from these octroi receipts, invoices and the statements of the two ex-employees, department has not produced any evidence in support of their allegations such as the statement of the goods recipients/transporters from where the raw materials were procured, electricity consumption etc. Moreover, the department failed to bring out on record that who was the owner of the truck in question at the relevant time as it is specifically denied by the appellants that they are not the owner of the truck, which is necessary in this case. Nothing investigated by the department for procurement of the raw materials, electricity consumption and where the goods were sold. No other statement has been recorded. In fact, the investigation was not done properly. In the absence of proper investigation and corroborative evidence, the charges of clandestine removal are not sustainable. 9. With these observations, we do not find any merit in the impugned order, the same is set aside and the appeals are allowed with consequential relief, if any. (Pronounced in Court on ..) Sd/- Ashok Jindal Member (Judicial) 10. [Per : Chittaranjan Satapath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An argument has been advanced by the appellants that the octroi receipts show transportation of billets, whereas the appellants were only manufacturing ingots. This submission of the appellants has been duly considered by the adjudicating authority, who has examined the individual octroi receipts. Out of the total demand of about Rs. 16 lakhs, he has dropped the demand for about Rs. 9 lakhs discarding those octroi receipts which showed different goods other than ingots. As such, the fact that some of the octroi receipts mentioned billets does not have a bearing on the demand of about Rs. Seven lakhs, which has been confirmed without taking into account such octroi receipts where billets and other goods are mentioned. 16. Further, the invoices listed in Annexure-2 of the Show Cause Notice clearly points to the fact that the appellants were issuing duplicate invoices showing different quantities and in some cases, the invoices were issued for quantities which were not reflected in the Central Excise records maintained by them. 17. Moreover, I find that the authorities below, both the original authority and the appellate authority, have given reasoned findings and have passed spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine removal without payment of duty against the appellants is not sustainable and therefore, the appeals are required to be allowed as held by the Hon ble Judicial Member. 18.3 It may be stated that the Member to whom reference has been made neither has Appellate nor revisionary jurisdiction in terms of Section 129C(5) of the Customs Act, 1962. 18.4 Both sides now agree that the above question may be answered to resolve the dispute. Accordingly, Misc. application is rejected and reference is proceeded to be dealt as under : 19.1 Heard both sides. 19.2 While learned Counsel for Appellants supports decision of learned Judicial Member, Revenue finds support from decision of learned Technical Member. Revenue says that entire allegation in show cause notice was proved from evidence on record and evasion of duty was established. But learned Counsel for appellant emphasizes that disowning the impugned vehicle by appellants, Revenue s allegation of clandestine removal of ingots failed to be established. Difference arose on the evaluation of evidence, admissibility, relevancy and credibility thereof. 19.3 While learned Judicial Member in para 7 of the order observed that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also admittedly stated that he has deposited Octroi at the respective Octroi check gate on the ingots of the appellant transported. Preponderance of probability was in favour of Revenue for which appellants failed to gain favour of law. 19.5 Added to above, evidence of Madan Mohan Saini recorded by Revenue confirmed use of the impugned vehicle (PCR-4785) for transportation of ingots sold to local buyers in Jallandhar by corroborated testimony of Sri Saravjeet Singh. He also confirmed that Shri Saravjeet Singh was driver of the impugned vehicle and that remained un-refuted. Octroi receipts also established name of Shri Saravjeet Singh appearing therein as payer thereof. All these evidence lent credence to the case of Revenue without being demolished by Appellant. 19.6 Statement of Shri Murali Manohar, Ex-M.D. was not reliable because he was witness of the appellant facing penalty abetting evasion made by appellant. So also Shri Murali Manohnar being fate accompli to the evasion done by Principal appellant, his testimony was neither credible nor believable in the eyes of law. That was rightly disregarded by learned Technical Member. 19.7 Discovery of parallel invoice as record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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