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TMI Blog2014 (6) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... further he was not admitting the entire clearances in red diary as clandestine removal, no efforts have been made to quantify the exact quantum of tread rubber cleared without payment of duty. In such a situation, both sides have failed to make out a case in their favour in accordance with their submissions - It will be unfair on my part to either uphold the entire demand or to adjourn the matter for further quantification in view of the fact that the case relates to the year 1995-96 and the matter is coming before this Tribunal for second time. Under these circumstances, keeping the total amount involved for consideration and the facts as discussed above, in my opinion, it would be appropriate if the assessee is required to pay the duty on the quantity found short at the time of visit of the officers - Decided partly against assessee. - E/720/2003-SM - Final Order No . 20565/2014 - Dated:- 16-4-2014 - SHRI B.S.V.MURTHY, J. For the Appellant : Shri N. Anand, Advocate For the Respondent : Shri S. Teli, Deputy Commissioner(AR) JUDGEMENT Per : B.S.V.MURTHY The Appellant is a partnership firm engaged in manufacture of tread rubber falling under Chapter he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice/bills they assure that bills will be sent afterwards but hardly they kept up their assurances. The details of purchases/deliveries on 6 occasions are detailed at p.124 and except for one consignment which was supported by invoice, the other 5 consignments there was no invoice/bill details. Stopped doing business with Hindustan Rubber Factory. 4. Ashok N Hanumsagar, Ashok Tyre Works Hubli 15.11.1995 I have purchased tread rubber from Hindustan Rubber Factory with invoice and paid money in cash. Handed over the copies of invoices for goods purchased. The details of purchase of tread rubber made from Hindustan Rubber Factory are given in the table. Totally 7 invoices with invoice details, quantity and values were given. 5. M.L.David, Star Tyres 24.11.1995 Purchased 60kg tread rubber valued Rs.4,200/- from Hindustan Rubber Factory through agent and paid Rs.4,200/- in cash and the agent gave simple receipt which does not bear any number or signature or name of the supplier. No other purchases have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he was out-of-station as on the date of visit to the Appellant factory i.e. on 10.11.1995; it was explained that RG1 register was incomplete inasmuch as clearances effected by invoice nos.57 to 60 totalling involving 4,435 kgs were not entered in the removal column of RG1 register; that the fact was that balance short quantity of tread rubber i.e. 2,247.78 kgs was kept in semi-finished stage ready for extruding and this quantity was not shown to the Department at the time of physical verification by Mrs. Mary Alvares and she did not satisfactorily explain for the same; further to various questions put forth by the Department answers were given to the Department and facts were explained in detail. Mr. Mustafa Khan, Manager did not accept anywhere in the deposition statement that there was any clandestine removal. Further as regards the question pertaining to diary , it was answered that he was not aware of the diary and sought for copies of the so-called diary in order to enable him to verify the same. Subsequently, in his statement dated 20.1.1997 he stated that only a few entries may be there which were not reflected/shown to the department and on such entries he stated that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total quantity of tread rubber cleared as the red diary recovered from the factory has been considered as removed clandestinely and duty demanded. He submits that this cannot be sustained in the absence of any statement from the author of the red diary and in the absence of any admission on the part of any officers of the company/firm admitting that the clearances in red diary were made without payment of duty. He draws my attention to the statement of Shri Mustafa Khan who had clearly stated after seeing the photocopy of the red diary that he was willing to pay duty on the quantities cleared as per the red diary for which there is no corresponding entry in statutory records. No such verification with statutory record has been made. In the absence of any admission to the fact that entire clearances in red diary were without payment of duty, the demand cannot be sustained. He also submitted that the statement of all the receivers of goods as per annexure 1 2 of the show-cause notice has not been recorded and even in the statements recorded from 11 customers, many have stated that they have received goods under invoices and paid the consideration by cheque. He submitted that s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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