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TMI Blog2002 (8) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... inium extruded profiles, while appellants Nos. 2 and 3 are directors of the company, and appellant No.4 is an authorised signatory. The factory premises of the company was visited by the preventive officers of the central excise on 22.6.99. After completing inspection and checking of the raw materials stock, the statements of employees were also recorded. Ultimately, show cause notice was served on the company vide which duty demand of ₹ 45,15,285/- was raised and penalty of equal amount was also proposed to be imposed on it. On the other appellants also, penalty was proposed to be imposed under rule 209A. The confiscation of plant, machineries and building etc, was also sought to be made. The allegations made in the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reliable evidence on record to substantiate any of the allegations made in the show cause notice against the appellants and that the impugned order had been based on the presumptions and assumptions wrongly. The impugned order deserves to be set aside. 6. On the other hand, the learned SDR has only reiterated the correctness of the impugned order. 7. We have heard both sides and gone through the record. 8. The company appellant No.l is admittedly engaged in the manufacture of aluminium extruded profiles. They are using aluminium ingots and aluminium scrap in the manufacture of this product. The first allegation made against the company in the show cause notice is that in the process of manufacture of finished product (aluminium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact, manufactured the goods from the excess material and removed the same without payment of duty. 9. The plea of the company that melting loss to the extent of 3.5% shown by them was not in any manner exhorbitant or incorrect, had not been properly appreciated by the learned Commissioner. The company showed before the Commissioner that even income-tax authorities accepted and allowed wastage to the extent of 5.57%. They also brought to the notice of the Commissioner that as per input/output norms in the EXIM Policy 5% loss is permissible. The company had also referred to the proceedings of the international conference on aluminium (INCAI,98) Vol.2 and submitted that metal recovery in melting operation has been shown as 94% and as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths and later on in the next financial Year the income-tax authorities accepted and allowed wastage to the extent of 5.57% to the appellant company. 10. Therefore, the allegation of the department that the appellant company showed wrongly excess loss in the range of 3 to 3.5% as against 1.5%, does not stand established from any substantial evidence. 11. Moreover, there is not an iota of evidence on record to prove that by showing the alleged excess burning loss, the appellant company manufactured excess finished goods and removed the same in the clandestine manner, without payment of duty during the disputed period i.e. April,95 to March,98. 12. The allegations of the department mat during this period, raw materials to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, he himself has explained that the was neither competent nor had any personal knowledge regarding the slips or facts relation to unloading. The other witnesses namely Kedar Dattatray and Ramesh Pinge had not stated anything in relating to the slips and the petty vouchers in question. They had nowhere stated that all these slips and vouchers pertain to the receipt of raw materials by the appellant company. Similarly, Rajindra Kumar Chauhan, employee had nowhere admitted in his statement that slips and vouchers in question related to the receipt of raw materials in clandestine manner by the company. He rather, in his affidavit, explained that slips and vouchers were prepared in order to make payment to the workers in respect of the work d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eck post to check if truck of the company M/s. Usha Roadways carried the goods of the appellant company. The lorry receipts were inconclusive and insufficient to attribute the clandestine removal of the goods by the appellant company. 14. Similarly, the recovery of 4 lorry receipts from the premises of M/s Veshno Devi Roadlines in the absence of any corroborative evidence was insufficient to prove the charge of clandestine removal of the goods against the appellant company. The statement of Sanjay Yadav, driver-cum-owner of the truck did not also advance the charge of clandestine removal against the appellant company. He had simply deposed that he used to transport the goods of the appellant company and for which he used to pay commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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