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TMI Blog2007 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner, Central Excise Division, Sangrur by his letters dated 13-7-2000 and 19-7-2000 said to have been issued by the respondents who were manufacturing ordinary Portland cement. According to the Revenue, the Director of the respondent Shri Bhushan Bansal who was confronted with the said 24 invoices admitted that they did not tally with the invoices of the same number issued by the respondent for clearance of excisable goods, but the signatures therein were genuine. Even the other Director Shri S.K. Bansal who was confronted with these invoices admitted their signatures as genuine. One Baijit Singh who was working as clerk cum-accountant with the respondent admitted having prepared/generated fake/duplicate invoices as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of duty only in respect of the goods removed under invoice No. 186 dated 27-8-1999. He also reduced penalty on the company to Rs. 500/-. 4. The learned authorized representative for the department contended a that the admissions made by the Director of the fact that the invoices were signed by them and that these invoices were having the same numbers as the statutory invoices which were shown in the record and that they were having different particulars from those shown in the original record, and further that the employee of the respondent who was accountant had admitted the fact of clandestine removal of goods which was corroborated by the octroi receipt showing removal of goods under the duplicate invoice No. 186 dated 27-8-1999, es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, submitted that the statement of Baijit Singhy, former accountant of the respondent company cannot be relied upon because, he had been dismissed from the company. It was further submitted that clandestine removal of goods could not be inferred on the basis of such invoices, which were generated by the said accountant. He also submitted that there was no admission of clandestine removal made by any of the Directors and no clandestine removal can be inferred, on the basis that their signatures appeared in the invoices. He also submitted that the buyers named in these invoices and the transporters of the trucks who were mentioned therein did not support the Revenue. According to them, the goods were not transported under these invoices by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case where the Tribunal did not find "any evidences indicating towards the clandestine activities of the appellants". In that paragraph there is reference to an earlier decision of Saraya Steel Ltd. v. CCE, Allahabad, reported in 1998 (98) E.L.T. 787 which was followed. In that decision, the Single Member Bench had, in para 5 of the order, held that the "case of clandestine removal should be proved up to hilt, it should not be based on surmises, presumption or conjectures". There cart be no quarrel over the proposition that clandestine removal cannot be proved by mere surmises and conjectures and that when there is no affirmative evidence to prove the charge of clandestine removal, it is not established. It is evident that there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof. Often it is nothing more than a prudent man's estimate as to the probabilities of the case (see paragraphs 30,32 and 33 of the judgment). 8. So far as the duty demand and penalty in respect of the goods under invoice No. 186 dated 27-8-1999 are concerned, since no appeal has been preferred by the assessee, the liability stands confirmed. Therefore, the matter is required to be examined only in respect of the alleged clandestine removal of 23 consignments. On one hand, we have the statement of Shri Baijit Singh, former accountant clearly implicating the assessee by alleging that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen Shri Baljit Singh had tried to implicate the Directors and he did not turn up for cross-examination in spite of two notices, it was unsafe to rely upon his statement especially when he was dismissed from service, in the absence of any independent corroborative evidence to show the removal of goods under the said 23 invoices. The procurement of these invoices is shrouded in mystery. These are alleged to have been procured, "from some informer" by the range officer. These invoices were not found from the factory premises. These were also not produced by any buyer or transporter of the goods which are alleged to have been removed under the cover of these invoices. Admittedly, all the persons, including M/s. Vinod Industries (consignee of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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