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TMI Blog2014 (2) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.758 MT, 3.920 MT and 0.050 kg respectively. A panchnama was drawn. Scrutiny of private records resulted in recovery of two loose papers kept in a red register. The said papers were showing disposal of final product of the respondents. On comparison with RG I entries, it was found that clearances reflected in the said loose papers were not recorded. 4. Statement of Shri D.S. Trivedi, Accountant was recorded on 2.8.96 wherein he deposed that the shortage of raw materials is due to non-verification of stock of raw materials from time to time. As regards, the loose papers, he deposed that same were written by Shri P.S. Gehlot, Production Supervisor. Shri Gehlot did not appear for recording of statement in spite of summons being issued to him. 5. As the loose paper recovered from the factory revealed that the casting have been sold to one Shri Bupender Kumar, Proprietor, M/s.Sneh Sales Corporation, Indore, inquiries were conducted at the end of buyers. Shri Bupender Kumar in his statement on 5.8.96 admitted that the said goods reflected in loose papers were over and above the goods supplied to him under the cover of invoices. He clarified that the entire payment was made in cash an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onverted into the final product, cleared clandestinely. Infact, we find that while framing the issue, the Revenue, in their memo of appeal have themselves mentioned that the raw material found short is presumed to have been used in the manufacture of final product, removed clandestinely. Apart from the so called shortages of raw materials, we find that there is no evidence on record establishing conversion of raw material into final product and clearance of final product. 10. The respondents have filed cross objection and have drawn our attention to various decisions of the Tribunal. We note that each case of clandestine removal is required to be adjudged on the basis of facts and evidence available in that particular case. No doubt for the legal principle support can be taken from precedent decision but the same is required to be applied to each and every case. In the present case, apart from the shortages, which appellant has disputed on the ground that the same was calculated on eye estimation and no actual weighment was conducted, we find that there is no other evidence reflecting upon the clandestine removal of huge quantity of 170.592 MT alleged by the Revenue to have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion; (ii) Certain loose sheets of paper recovered from the factory; The Accountant of the factory stated initially that it was written by Shri. P. S. Gehlot, Production supervisor; (iii) Unwillingness on the part of Shri. Gehlot to join investigation initially; He joined proceedings later and stated that the loose sheets were not written by him; but he admitted that some of the goods cleared to one of the buyers namely, Sneh Sales Corporation were cleared without payment of duty and the said fact was confirmed by the Director of the company. (iv) Admission by Sneh Sales Corporation that they received certain goods which were not covered under invoices and they paid sale value of such goods in cash; (v) Report from the Chief Manager of State Bank of India addressed to the Respondent seized from the files of the Respondent stating that they were not depositing sale proceeds in banks. 15. At this stage unaccounted clearance of final products to M/s Sneh Sales Corporation is not being challenged. The challenge is in respect of the rest of demand calculated based on the argument that goods manufactured out of the missing raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early proves that the Respondent indulges in unaccounted manufacture and clearances. The position that there was shortage of raw materials was accepted at the time of verification though later there is an attempt to retract from the admission based on the argument that stock was taken based on eye-estimation. From Panchnama dated 02-08-96 what I find is that the physical stock available was found out by loading the goods on truck No. MPO-3211 and CII-1711 and weighing. Weighment slips recorded at Maheshari Alloy Casting Pvt. Ltd. are enclosed to the panchnama. Thus I see the submission on this count to be false and an attempt to fit the facts of case into case-laws rather than seeing whether the case laws fit into the facts of the case. Further during the initial statements of Shri Suresh Sharma Director of the noticee company on 27-08-96 admitted the facts of clandestine manufacture and clearance rather than challenge the accuracy of stock taking. 18. The private records recovered from the factory prove clandestine manufacture of the goods. Further, in respect of one buyer Revenue has been able to prove the goods were actually sold to them without payment of duty. In my view thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal of Revenue gave rise to following questions for answer by third member in view of difference in decision arose while deciding the appeal by original bench:- "Whether the case of clandestine removal made out by Revenue is to dropped in respect of the quantities for which Commissioner (Appeal) has given relief? OR Whether the case of clandestine removal made out by Revenue is to be upheld in respect of all the goods for which the adjudicating authority had confirmed the duty demand and penalty also to be imposed accordingly". 25. Revenue supports the findings and conclusion of ld. Technical Member. 26. Ld. Judicial Member in para 9 of the order records that Revenue in its appeal memorandum has mentioned that the raw materials found short was presumed to have been used in the manufacture of final product removed clandestinely and apart from the so-called shortage of raw-material, there was no evidence on record establishing conversion of raw-material into final product and clearance of the same. 27. In para 10 of the order, it has been recorded that there was no evidence reflecting upon the clandestine removal of huge quantity of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.96 of State Bank finding place in Para 13 of appeal order. He accordingly opined that Adjudication should sustain. 31. Submission of Revenue supporting order recorded by ld. Technical Member was examined on the basis of material on record including adjudication order. Investigation team did not find any stock during investigation. Inextricable link of clandestine removal of finished goods was established from incriminating documents and evidence including private recorded found in the course of investigation. Unaccounted sale was admitted by buyer. Shortage of scrap of 175.608 MT of scrap, 3.92 M.T. of Ferro Manganese and 50 Kg. of Ferro silicon was well evident from statement of Shri P.S. Gehlot. These goods were used in manufacture of steel castings on the basis of clear admission of assessee. Evasion of duty of Rs.6,65,309/- was established. Therefore, nothing was presumed nor assumed by investigation when that remained un-rebutted in adjudication. Accordingly decision of the learned technical member cannot be said to have been based on no evidence or inadequate evidence. 32. Findings record by learned Technical Member has legs to stand having been based on cogent evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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