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TMI Blog2015 (10) TMI 2140X X X X Extracts X X X X X X X X Extracts X X X X ..... final goods, flow back of money or any seizure of statements from purchasers. - Decision in the case of M/s T.G.L.Poshak Corporation (2001 (9) TMI 683 - CEGAT, CHENNAI), followed. Only for the reason that M/s Arhat an unregistered unit issued few invoices under same serial number cannot be interpreted to the extent that the goods manufactured by M/s SUTPL were cleared under the invoice of M/s Arhat. No modus operandi has been brought on record. Further as regard second portion of demand that in the sheet prepared on the basis of papers allegedly containing details of raw material, production and dispatch wherever remarks no invoice issued was given are clearance of goods manufactured by SUTPL by M/s Arhat, I find that in absence of any evidence of any of the units, the allegation cannot sustain. There are no evidence that any of the units has forged their documents to show that the goods were manufactured by M/s Arhat. Thus it is only a farfetched assumption without any evidence and cannot be accepted. In the show cause notice it is nowhere coming as to from which place these documents were seized. No panchnama has been relied upon in the show cause notice. Further it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase are that M/s SUPTL is engaged in the manufacture of Welding rods under the brand name of Thermoweld and Deltatherm Brand. Shri Sunil Gandhi is director of the said concern. M/s Arhat a proprietorship firm owned by Shri S.L. Gandhi, father of Shri Sunil Gandhi is also engaged in manufacture of welding rods and is availing value based exemption. During the visit of the Central Excise Officers to the factory premises of both the concerns, residence of Shri Sunil Gandhi as well as other premises, the officers seized various records and papers which culminated in passing of impugned order against the Appellants. Out of demand of ₹ 13,85,967/- a demand of ₹ 1,91,552/- was made against M/s SUPTL on the basis of page no. 4 to 28 of file marked as A- 9 which was seized from the residence of Shri Sunil Gandhi. It was alleged that the said pages contains details of production, dispatch, receipt, packing and sales statement of Thermoweld and Delta Therm Brand of M/s SUTPL. That these documents were signed by three persons out of which one was Shri Aditya Saxena, the Works Manager of M/s SUTPL. The officers prepared sheets on the basis of said papers and wherever remarks No inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sales register during a particular period. It appears that the said documents belong to consignment agent M/s GMT. That M/s GMT did not submit the details of deposit in the bank for the said period. That some of the details mentioned in the sales register were found tallied with the invoices issued by M/s GMT as welding rods. That Shri Sunil Gandhi was shown the stock statement for the period 16.09.2002 to 30.09.2002 to which he in his statement dt. 27.11.2006 stated that the said documents possibly may belong to any of our customer as these printouts has no mention of the firm/ company to whom they belong and it is not possible to ascertain their identity particularly since apparently these papers are four years old and if it is assumed that these statements belong to their customer, then it may be taken as that Gwalior means sales, goods returned means goods returned to Appellant. That proprietor of M/s GMT Shri Girish Mathur refused that the sales register for the period 01.06.02 to 15.06.2002 and the invoice no. 1226 issued by G.M.T belong to them. It was alleged that it appears that the said documents i.e. Stock statements, sales register etc. kept in the files A-8,A-4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prove the allegation of the revenue. 3.2. As regard demand of ₹ 8,78,276/- he submits that though the SCN states that the documents have been seized from various places, but no panchnama was prepared to show or to prove as to from where the said documents i.e stock statements, sales registers, cash, petty cash, group sundry debtors were seized. That though some register of stock statement relied upon for making demand against M/s SUTPL were matching with the sales register of M/s G.M.Trading but it can be seen that Shri G.M.Mathur, the proprietor of M/s G.M Trading refused that the records belong to his firm. That Shri Mathur when asked about the brand names of welding electrodes of M/s Arhat clearly stated that since they have sold goods of M/s Arhat in very less quantity, hence he does not remember the brand name of goods of M/s Arhat. That this statement of Shri Mathur conclusively shows that the clearance of goods of M/s SUPTL under the cover of invoices of M/s Arhat is without any basis. That only on the basis of stock statement which is of third party, the demand cannot be confirmed against M/s SUTPL. He submits that there is no evidence of receipt of raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed. Further I find that Shri Sunil Gandhi in his statement dt. 21.11.2006 refused those papers to be pertaining to any accounting. I am thus of the view that duty demand of ₹ 1,91,552/- is not sustainable. I agree with ratio of tribunal judgment in the case of M/s T.G.L.Poshak Corporation (Supra), wherein the tribunal set aside the demand on the ground that charges of clandestine removal based merely note books maintained by the workers and other private accounts not sustainable unless supported by corroborative evidence with regard to purchase of raw material, manufacture of final goods, flow back of money or any seizure of statements from purchasers. 5.1. The second demand of ₹ 3,16,139/- has been made against the Appellant on two ground. The first portion of demand has been made on the ground that from the invoice file of M/s Arhat found from the residence of Shri Sunil Gandhi, it was found that M/s Arhat has issued more than one invoice under same serial number. The second portion of demand is on the ground that in the sheet prepared by the officers on the basis of papers seized by the officers wherever the remark no invoice issued was mentioned, it was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the author of such documents. I find from the stock statement that nowhere the statement shows as to which concern such statement belong. It is alleged that stock statement belong to M/s G.M.Trading company. However I find that the officers did not investigated about such stock statement from M/s G.M.Trading Co. Although the statement of Shri G.M. Mathur was recorded, however no question were asked to him regarding such statement. He was only asked question regarding sales register to which he refused. In absence of any corroboration of the said stock statement with the records of the M/s SUTPL and any other corroborative evidence, I am of the view that the demand cannot survive. 5.3 I find that the ratio of judgment in the case of Suzuki Synthetics (Supra) is applicable in present case. It was held by the Tribunal that demand cannot be made on the basis of chits recovered from the table of folding clerk of finished stock department in absence of incriminating statement of any person and in absence of any excess consumption of electricity, unaccounted raw material or statement of supplier or buyer of finished goods. It was held that investigation was not taken to the logical end ..... X X X X Extracts X X X X X X X X Extracts X X X X
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