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TMI Blog2014 (7) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... les were drawn from the duty paid stocks cleared and not separately removed without payment of duty. However, the Appellant could not produce any evidence to this effect. Similarly the clearances made from the factory as weighment slip involving quantity of 5,855 kgs. could not be properly justified by the Appellant. Therefore, the quantity of 42800kgs. involving duty of ₹ 55,640/- removed on parallel invoice, 5,855 kgs. involving duty of ₹ 7,612/- removed on weighment slips, and 45,740 kgs. involving duty of ₹ 59,462/-removed as samples, had been cleared without payment of duty, are liable to be confirmed against the Appellant. Consequently, the total duty confirmed against the Appellant is accordingly works out to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of pre-deposit. Aggrieved by the said Order-in-Appeal, the Appellant preferred an Appeal before this Tribunal.Since the Appellant had deposited the amount, subsequent to the date of compliance, as directed by the Ld. Commissioner(Appeals), this Tribunal vide Order No.S-275/A-132/KOL/2006 dt. 21.03.2006 has allowed their Appeal and remanded the matter to the Ld. Commissioner(Appeals) to decide their Appeal afresh. The Ld. Commissioner (Appeals), after hearing the Appellant, upheld the Order of the Adjudicating authority and rejected the appeal filed by the appellant. Hence, the present appeal. 3. The ld. Advocate, Shri K. P. Dey, appearing for the Appellant, assailing the impugned order, submitted that the demand of ₹ 55,640/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 Regarding the allegation of suppression of production alleging maintenance of two sets of Drier Mouth Register, the ld. Advocate submitted that initially non-duty paid removal of tea was arrived at by deducting 78750kgs. from 120058kgs of production figure shown in two sets of Drier Mouth Register which was 41308 kgs. but if the correct figure of both the Registers are added, the same would come 198808 kgs of tea, which also contain elements to be weeded out and the quantity of 177902 kgs shown in RG I Register, if deducted, the differential quantity would be 20906 kgs and not 41308 kgs. It is argued that there is no positive evidence adduced by the department to show that the said differential quantity had been removed without payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of demand of clearance of free samples of 45,740 kgs involving duty of ₹ 59,462/-, the ld. Advocate submitted that the samples are not separately removed, but only a part of finished goods has been cleared on payment of duty. Therefore, no duty is payable against the said samples, which has already suffered duty along with main consignments. 3. Per contra, the ld. A. R. appearing for the Revenue, submitted that the Appellant had issued parallel invoices in the favour of three different buyers and on examination, it is stated by Mr. Amit Kedia Director of M/s Parsuram Tea that they have not purchased any tea from M/s Mars Tea (I) Pvt. Ltd. The ld. A.R. submitted that the Appellant could not substantiate the difference between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cleared 5,13,839 Kgs. of tea involving total duty of ₹ 6,67,991/-. The Ld.Commissioner(Appeals) has tabulated in the impugned Order the amount dutyevaded against corresponding allegations. 4.1 The Ld.Commissioner(Appeals) on the basis of receipt of raw materials during the period February, 2003 and March, 2003 had observed that the consumption of raw materials applying the standard input-output ratio had been substantial whereas the yield is merely 20% of the total production, and hence the production recorded during Feb 2003 to July 2003 falls short of the optimum production by 29,927 Kgs. of tea, which must have been cleared clandestinely without payment of duty of ₹ 38,905/-. Similarly, comparing the quantity mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar Mills Ltd. Vs. Union of India 1978(2) ELT (J172)(S.C.) has held that the allegation of clandestine removal cannot be based on mere mathematical calculations but on tangible evidences. Consequently, I do not have any hesitation to hold that allegations of clandestine manufacture and clearance of goods cannot merely be based on assumptions and presumptions but with material evidences either direct or circumstantial to show that these goods have been manufactured and cleared clandestinely. 4.2 However, I find that the Applicant had issued parallel invoices in relation to total clearances of 42,800 kgs.of tea, details of which are shown in the Annexure to the Notice. One of the Consignee mentioned in the said invoice has admitted to have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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