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TMI Blog2015 (8) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... taken only those samples of products with larger quantity and missed out those with lesser quantity and in case all the items are taken together, there would not be any difference in quantities. In spite of the fact that the aforesaid plea was specifically raised by the appellant in explaining that there was no difference in the quantities and thus, no question of any clandestine removal of the goods from the premises, the said plea has not been adverted to and there is no reference made to the aforesaid material produced by the appellant. It is stated at the cost of repetition, that only on the basis of so called admissions made by Mr. Mansukhani and Mr. Deepak Das, the authorities jumped to the conclusion without undertaking any further exercise. Such an order of the CESTAT which is confirmed by the High Court does not stand legal scrutiny and therefore, these orders are liable to be set aside. - Decided in favour of assessee. - Civil Appeal No. 2830 OF 2005 - - - Dated:- 8-5-2015 - Mr. A.k. Sikri and Mr. Rohinton Fali Nariman, JJ. For the Petitioner : Mr. S. Ganesh, Sr. Adv., Mr. Narendra Kumar, Adv., Mr. Vinod Mehta, Adv., Mr. Rakesh Kumar, Adv. For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussion on the essential aspects is reproduced below:- 3.1 The company had cleared goods for export also. The export documents showed the catalogue weight of the goods, which was more than the actual (physical) weight recorded in RG-1 register. Consequently, the weight of goods actually exported was less than what was shown I the export documents viz. AR4s. Invoices etc. The SCN alleged that the differential quantity of goods had not been accounted and the same had been clandestinely cleared without payment of duty during the period February 1994 to January 1999. this allegation was also based on the finding that the gate register and other records seized from the factory premises had shown that goods had been cleared without invoice and without payment of duty. The demand of ₹ 1,05,67,090/- was raised on a total quantity of 641.145 Mts of goods which was allegedly cleared in the above manner during the above period, corresponding to which the total quantity of exports as noted by the Commissioner was 6507.073 Mts. The adjudicating authority has found that out of this quantity of total exports, the exports made to M/s Man Intertrade Co. (UAE) are not to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to him, was too negligible to be taken into account. The DR submitted that he demand of duty was based only on the differential quantity admitted by the appellants and hence was irresistible. We are unable to accept the Consultant's arguments as we have noted that the demand of duty of ₹ 64,82,565/- is based on the unrebutted documentary evidence gathered from the appellants premises as well as the unretracted statements of the Managing Director and other responsible functionaries of the company. We have perused these statements and find that the adjudicating authority has correctly quoted and appreciated the same. The statements were never retracted, nor, was any of the documents disowned. The result was that the differential quantity of goods i.e. the difference between the actual (physical) weight and the weight shown to have been cleared for export was proved to have been removed from the factory without invoices and without payment of duty. The differential quantity was admitted but its accountal and clearance in terms of the legal provisions were not shown. (In view of the admission of the differential quantity by the company authorities, it was not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luenced by the statements of two employees of the appellant company viz., Mr. Deepak Das and Mr. J.C. Mansukhani and the entire order is rested on the so called admissions contained in the statement of these two employees. He submitted that from the reading of the statement of the two employees it would be crystal clear that there was no such admission made by them at all and what is sought to be read into those statements is not there at all and is conspicuously missing in these statements. It was thus, argued that the present case is a case of perverse findings. It is additionally argued that when the Commissioner or for that matter, the CESTAT relied upon the so-called admissions of the aforesaid two employees, it failed to look into any explanation furnished by the appellant in reply to the show cause notice and also in the form of other materials produced before the adjudicating authority. It was also argued that even in the statements of the said two employees, these employees had amply demonstrated and clarified the doubts pertaining to the differential in quantity but the authorities have blissfully ignored those parts of the statements of these employees, which has resulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wt. Range in export dies from - 10% to 0% as mentioned in the above said letter written by you to Mr. D. K. Chandwani Indore office on 8.8.94. Ans In export dies, catalogue weight should be always equal or 10% than the physical weight. We fail to understand how it amounts to admission on the part of Mr. Das that the quantity disclosed was less. To the similar effect is the statement of Mr. Mansukhani which is treated as his admission. In this behalf, we reproduce question No. 5 and answer thereof which is taken as admission of Mr. Mansukhani: - Question 5: Please see page No. 137 of File 49B where catalogue weight for different Section shown as 21986 kg., and same goods were cleared under BP-258, dated 29.12.1993 this BP 2 shows that in case of Export of goods the same are cleared on catalogue weight. Ans. 5. As per my knowledge in certain exports goods we will have to charge them as per catalogue weight and there is possibility of (+-) litter difference in the weight this is because of international rules. Apart from the aforequoted positions of the two statements, learned counsel for the Revenue could not point out any other part of the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: - The chart as Annexure 'AE' prepared for differential quantity 4.044 MT pertaining to the exports made during the period from 19.07.93 to 28.06.94 which is totally irrelevant as the relevant period of the proposed demand duty is from Feb, 94 to Jan, 99. The difference worked out in this chart comes to about 4.91% of total 82.391 MT quantity invoiced which is also appeared to be well within the tolerable limit of 5%. Another aspect for this chart is that the investigating officers while preparing the chart AE deliberately have taken only those cases in which catalogue weight is more than the actual weight and ignored the cases in which actual weight were more than the catalogue weight. Ongoing through whole para 6, it appears that these were the only stray evidences which the investigating officer of the department could collect after searching the files and records of Noticee No. 1 by spending almost three years valuable time of the Central Excise department. But these cases are also not relevant in the case of Noticee No. 1 as the relevant period of proposed demand of duty made in the impugned show cause notice is from Feb, 94 to Jan, 99. It is unfortunat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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