9911796707
TMI Blog2007 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... e proof led by the department not sufficient to establish the probability, to a required degree, to prove that respondent no.1 was manufacturing and removing the excisable goods clandestinely; and since the respondent no.1 has not effectively disproved the evidence led by the department, was the Tribunal legally correct to arrive upon the decision delivered vide the impugned order in divergence of earlier decision taken in the case of Roxy Enterprises Pvt. Ltd. v. CCE, Delhi - 1992 (4) ECR 361 (R)" 2. Facts are not in dispute. The assessee is engaged in the processing of Cotton and Man-Made Fabrics and is based at Faridabad. The officers of the Directorate General of Anti Invasion visited the factory premises of the petitioner on 14-9-1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. The order in original dated 4-12-2003 was set aside by the Tribunal vide order dated 29-7-2004 (Annexure A 2) primarily, on the basis of the finding that the note books recovered on 4-9-1999 did not belong to the assessee (Annexure A.3). The view of the Tribunal is discernible from para 4 of its order which reads as under : "We have considered the submissions of both the sides. The demand of duty has been confirmed against the appellants and the penalties have been imposed on them on the basis of the entries of the goods manufactured and cleared mentioned in the note books. It has not been disputed by the Revenue that the Panchnama dated 14-9-1999 mentions seizure of 5 numbers of 'Jindal duplicate Note books' whereas note books su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he has specifically mentioned that the details therein would tally with their statutory records. The learned Advocate has rightly emphasised that the RG I register was also seized on 14-9-1999 itself as it appears that as one of the seized register at srl. no. 24 of the Annexure to Panchnama. We also find force in the submissions of the learned Advocate that none of the customers mentioned in the note book was contacted by the Department nor any evidence had been brought on record as to how the alleged goods were sent to them. No question seems to have been put to Shri J.P.Keshwani, Director, about the entries made in the note books nor his statement was recorded on 14-9-1999 itself. No material evidence has been brought on record as to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal resultantly entertained a doubt about the genuineness of the note books. The Tribunal also examined in detail the statement of Rahul Keshwani by concluding that no question was put to him about the entries made in the note books nor his statement was recorded on 14-9-1999 itself. The Tribunal concluded that clandestine removal has to be proved by evidence such as purchase and utilisation of raw material, labour employed, power consumption etc. The statement made by Shri N.K. Govila was also ignored as he was not made avail able for cross-examination of the assessee. Accordingly additional demand of duty on the basis of notebooks was not sustained by the Tribunal. 4. It is not possible for us to conclude that the question of law would a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
