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TMI Blog2014 (10) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... d, place of delivery to whom the goods are delivered, details of recipients etc. The entire demand of duty has been arrived purely on the basis of quantity shown in salary file and the statement of Shri R.P. Lakshmana Perumal. Apparently, no other evidence has been brought on record to corroborate shortage of quantity as per salary file with daily production register. Entire investigation has relied only on the salary file which only relates to payment of wages for each labourer. In the absence of any other documentary evidence, the quantity mentioned in the foot note cannot be taken as the total quantity produced during that week. Further, as explained above, the said quantity is not only related to finished goods but related to lap stage production. The adjudicating authority in his order had discussed the issue in detail and by relying on the Tribunal s decisions (supra) had rightly dropped the proceedings against the appellant as well as against Shri R.P Lakshmana Perumal, Managing Director of the company. Therefore, respectfully following the Tribunal s decision (supra) I do not find any merit in the impugned order. Accordingly, the impugned order is set aside and the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lap stage production. As per the mahazar drawn by the department, shortage arrived to 38370.840 kgs. by comparing the production shown as per the salary slips with R.G. 1 Register. Wherever the salary slips were not available, the department has taken the quantity production from the R.G. 1 Register and this proves that the actual shortage computed by the Department is arbitrary and has no basis. The department has not conduced any further investigation to prove clandestine removal, higher production, purchase of raw materials, consumption of other materials, monetary consideration received to corroborate the quantity shown in the salary file. The department has not recorded any statement from Shri A. Rajendran, Excise Clerk who has actually maintained the salary slips for payment of wages to the labourers. Further he submits that the Revenue has filed appeal before the Commissioner (Appeals) only against the appellant and no appeal was preferred against Shri R.P.Lakshmana Perumal, M.D as SCN proposed for imposing penalty against the Managing Director. Therefore, Department accepted non-levy of penalty on Shri R.P. Lakshmana Perumal. Since the entire allegation in the SCN is base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AC. The SCN also issued to Mr. R.P. Lakshmana Perumal, Managing Director as co-noticee for imposition of penalty under Rule 209A read with Rule 26 of CER alleging that he contravened the provisions of Rule 9(1), 52(A), 173F and 173G etc. The adjudicating authority passed OIO dropping proceedings on the appellant-company as well as on the Managing Director of the company whereas Revenue has filed appeal before Commissioner (Appeals) against the OIO only against the appellant-company. Apparently, no appeal was filed before the Commissioner (Appeals) against Shri R.P. Lakshmana Perumal, M.D. of the company. Commissioner (Appeals) allowed the departmental appeal and confirmed the SCN. While allowing departmental appeal, the Lower Authority has only confirmed the SCN and not indicated the quantum of penalty either under Section 11AC or under Rule 173Q or under Rule 25 of the Central Excise Rules. Therefore, the issue is to be decided in the present appeal relates only on the appellant-company where the Revenue filed appeal before Lower Authority. 7. On perusal of the records, the statement, it is seen that the Divisional Preventive Officers visited the appellant's unit on 4.9.2001 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a remark Total production for this week- 5779.400 kgs. Total OT wages for this week - ₹ 1077.25p 8. The above sheet shows the names of the labourers written in hand in Tamil and also signed by each labourer. At the bottom of the sheet, it the bears the signature said to be of Shri R.P. Lakshmana Perumal. It is apparent that this salary/wages file is maintained by the appellants only for payment of wages to the individual workers on a weekly basis including the Overtime. The department has relied on the quantity indicated in the daily sheets as the total quantity produced for the week and the total quantity arrived at 1,72,096.840 kgs when compared to total quantity recorded in RG.1 Register of 1,33,786 kgs. The total shortage of quantity worked out by the department is purely on the difference between salary file and RG.1 Registers. Annexure 'B' of the SCN contains the worksheet tabulating the production quantity as per salary file. It is seen that at Sl.No.(1) and Sl.No. (5), the production quantity of 1650 kgs and 4860 kgs. taken as per daily production register as no figures available. When this quantity is already taken into account in RG.1, the same cannot be sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld. A.R relied on the citation in the case of Haryana Acrylic Mfg. Co. Pvt. Ltd. (supra) and Ramachandra Rexins Pvt. Ltd. and other citations referred to (supra) which are clearly distinguishable on facts. In above cases, the private documents seized by the department have been clearly corroborated by supporting statutory documents and production records whereas in the present case, no such records have been produced by the department to corroborate the evidence. Therefore, the above citations relied upon by Ld. A.R are not relevant to the present case. 12. On the other hand, there are various decisions of the Tribunal, wherein it has been consistently held that mere relying on the statement or a private records without corroborative evidence is not sufficient to establish clandestine removal of the excisable goods. In this regard, I find that the ratio of decision of this Bench of the Tribunal in the case of 2002 (140) ELT 187 (supra) is squarely applicable to the facts of this case. The relevant para of this decision is reproduced below :- "6. We have carefully considered the submission and perused the impugned order. Insofar as the assessee's appeal is concerned, we ..... 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