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TMI Blog2014 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... le and 10 such bales were in excess of the balance recorded in RG-I register. There is, thus, non-accountal of 5,000 bags in RG-1 register and hence, the same have been correctly confiscated. In view of this, confiscation of the bags not accounted in the RG-I register and imposition of redemption fine in lie of confiscation has to be upheld. However, no penalty would be imposable on this count as there is no evidence indicating that non-accountal was with the intention to clear the goods clandestinely - except for confiscation of 5,000 bags and redemption fine imposed in respect of the same, rest of the order is set aside - Decided in favour of assessee. - Appeal No. E/685/2005-EX[SM] - FINAL ORDER NO: 58643/2013/2013 - Dated:- 19-12-2013 - Mr. Rakesh Kumar, J. For the Appellant : Sh. Bipin Garg, Advocate For the Respondent : Sh R.K. Verma, DR JUDGEMENT Per Rakesh Kumar:- The facts giving rise to this appeal are, in brief, as under:- 1.1 The appellant in their factory at Faridabad, Bareilly, are engaged in the manufacture of HDPE/PP bags falling under sub-heading no.3923.90 of the Central Excise Tariff. The bags are used mainly for the packing of the ferti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 11.02.99 was issued to the appellant company for recovery of the above mentioned duty along with interest, confiscation of the excess stock of HDPE/PP bags and also for imposition of penalty on the appellant company under Section 11 AC and penalty on Shri Sunil Mehta, General Manager and Sh. A.K.Agrawal, an employee under Rule 209A of the Central Excise Rules, 1944. 1.4 The show cause notice was adjudicated by the Addl. Commissioner, vide order-in-original dated 28.8.2001. In the course of adjudication proceedings before Addl. Commissioner, the appellant gave an entry wise explanation explaining that there were no clearances without payment of duty. With regard to the entries in the charts, where there were no invoice numbers, it was pleaded that in some cases, though the supply orders had been received by the Sales Department, subsequently, on cancellation of the orders, the goods were not dispatched and in other cases of absence of invoice numbers, the goods had been cleared under invoices on payment of duty. With regard to the discrepancy in the names of the buyers, it was pleaded that the names appearing in the charts are of their commission agents through whom the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the cases where the invoices were mentioned but there was difference between the name of consignees as mentioned in the chart and as mentioned in the invoices or difference in the quantity/value, as mentioned in the charts and as mentioned in the invoices, that all the cases where invoice nos. are not mentioned are either those cases where on account of cancellation of the sales order, the goods had not been dispatched or goods mentioned are included in the other invoices and had been cleared on payment of duty, that these charts had been prepared by the Sales Department on the basis of the sales orders procured and the same do not always tally with the actual dispatches and therefore merely on the basis of missing invoice numbers in the charts duty can not be demanded, that the Department had conducted inquiries with the customers and the result of the same have neither been disclosed nor relied upon, which indicates that the customers clarifications were in appellant s favour, that in any case, without evidence of transporters of the goods regarding transport of the goods to the customers against whose names in the charts, no invoice number is mentioned and without confirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant company is clandestine clearances without payment of duty of HDPE/PP Bags involving the duty of Rs. 7,77,256/-. The basis of this duty demand confirmed by the Additional Commissioner and upheld by the Commissioner (Appeals) is three documents recovered from the office of the appellant company in their factory premises in course of search. The first two documents are in form of computer generated charts giving details of dispatches during May 98 July 98 and the third document is titled Highlights: -Month July 98 and the same gives total figures of sale of HDPE/PP bags fabrics and waste during July98 as Rs. 75,15,089/-. 6. In the two charts giving details of dispatches for the month of May98 July98, it is seen that against certain serial numbers, there are no invoice numbers mentioned though the details of the buyers, quantity of the goods sold and the value are mentioned. The total value of such clearances during May 98 July 98 is Rs. 13,56,153/- and Rs.9,05,711/- respectively. The Department s allegation is that the clearances in respect of which there is no mention of the invoice number in the charts have been made without issuing invoices and without paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order through M/s. Sitaram), Invoice No. 70 issued to M/s. Asian Cement (who had placed the order through M/s. Sitaram) and invoice number 71 73 to M/s. Shree Ramji Bhardwaj Traders (who had placed the order through M/s. Sita Ram), respectively. Similarly in respect of the dispatches at serial Nos. 20,22 23 in the chart for the month of July98, where there is no invoice number mentioned, it is pleaded that the quantity mentioned in the chart is covered by the invoice No 145 146 dt. 23.07.98 issue to M/s. Swastik Polypack, Kanpur; Invoice No 149 dt. 25.07.98 issue to M/s. Kunwal Polypack, Bareilly and Invoice No. 151 dt. 25.07.98 issue to M/s. Mukesh Khandelwal, Bareilly respectively and that in this invoice no.151 dated 25.7.98 instead of Ajay Khandewal, the name was wrongly mentioned in the chart as Mukesh Khandewal 6.2.1 On going through the Invoice No. 60 dt. 19.05.98 issued to M/s. Shree Ramji Bhardwaj Traders, for sale of 10,000 HDPE/PP bags, it is seen that it covers the consignment mentioned against the Sl. No.12 of the chart for May 98. The difference in the party s name is for the reason that the order has been placed by M/s. Shree Ramji Bhardwaj Traders thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of Rs.5,65,466/- in respect of the entries in the dispatch charts for the month of May, 1998 and July, 1998, where no invoice numbers are mentioned, is not sustainable as the omission to mention the invoice number is either due to mistake of the person, who had prepared these charts as the goods were covered by other invoices or there were no dispatches as the sale orders had been cancelled. 8. The remaining amount of duty demand based on the dispatch charts for May, 1998 and July, 1998 is on the basis that though the charts mention the invoice nos. and the customer s name, in the invoice of those Sl. Nos., either the customer s name is not matching or quantity or value of the goods is not matching. In respect of these discrepancies, the appellant in their reply to the show cause notice have given detailed serial number wise explanation, which has not been accepted by the department. One objection of the department is that while as per the chart, the customer s names are mentioned as M/s. Sita Ram, Bareilly or M/s. Swastick Polypack, Kanpur, but the name of the Customers as mentioned in the invoices are different. The appellant s plea is that M/s. Sita Ram, Bareilly and M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders had been received and the invoice bearing the name of the person to whom the goods had actually been sold. Thus, after going through the appellant s plea regarding each case of discrepancy between the customer s name and particulars of the goods as mentioned in the chart and as mentioned in the invoices, I am of the view that this is not the case where under the same invoice no. the goods have been cleared more than once. Moreover, no evidence has been produced to show that the customers as mentioned in the chart as well as the customers as mentioned in the invoices had received the goods. As mentioned above, in this regard the appellants plea is that enquiry had been conducted with the customers but the same has not been relied upon and on this basis, the appellants plea is that the result of the enquiry with the customers must be in the appellant s favour. But on this point, there is no response from the department. In view of this, the duty demand based on the discrepancy between the customer s name and the quantity, etc. as mentioned against various Sl. no. in the dispatch chart for May, 98 and July, 98 and as given in the respective invoices is not sustainable. 9. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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