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TMI Blog2016 (3) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 and on completion of necessary investigation conducted thereafter demanding duty of Rs. 2,65,596/- not paid on the goods manufactured and alleged to have beencleared without payment of duty and irregular availment of CENVAT Credit of Rs. 8,04,445/- besides proposal for confiscation of 3,778.47 kgs. of Vanaspati valued at Rs. 2,47,097/- and Oxygen field in cylinders valued at Rs. 57,500/- seized during investigation. The said demand was confirmed and penalty of Rs. 10.73 Lakhs was imposed. Aggrieved the appellant filed an appeal before the ld.Commissioner(Appeals) and the ld.Commissioner(Appeals) vide order dated 11.11.2005 upheld the said order. Consequently, the appellant preferred an appeal before this Tribunal. By its order dated 07.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that these were rough notes recording therein the enquiry of their customers and hence the quantity mentioned therein cannot be considered as clearances of goods without payment of duty. The ld.Advocate had furnished a reconciliation statement in support of his claim that the quantity of finished goods reflected in this rough sheets were cleared on payment of duty supported by relevant excise invoices against which the goods were cleared on payment of duty. He submits that there is not an iota of evidence that the goods mentioned in these chits were cleared by them without payment of duty. Further, he has referred to the statement of two customers namely Shri Amar Kasera and Shri Sunil Kr.Agarwal dated 12.10.2004 recorded by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clearance/sale of Oxygen gas which emerged as a by-product and vented into the air prior to the said period, confirmation of duty is unsustainable in law. 5. Regarding the duty liability of Rs. 32,367/- on cancelled invoices the ld.Advocate has sample copies of cancelled invoices submitted along with their paper book. It is his contention that since duty on Vanaspati has been levied for the first time in the year 2002-2003, the procedure for maintenance of the records was not in accordance with law inasmuch as the person who used to prepare the excise invoices did not know the implication of cancellation/correction of an invoice. He submits that the invoices were cancelled/corrected if any of the entries in the invoices was found to be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial evidences about clearance of goods mentioned in those cancelled invoices, therefore demand has been confirmed against them. It is his contention that the appellant could nor produce the first and second copy of the invoices even though the triplicate and qua-duplicate copy were available with the appellant. Similarly, on the issue of demand of duty on Oxygen gas the ld.AR for the Revenue has submitted that the appellant could not produce any evidence to establish the fact that prior to March, 2003, the Oxygen gas was not sold, but vented into air therefore confirmation of demand on this count is also justified. 7. Heard both sides and perused records. I find that out of the total demand, the ld.Advocate chose to dispute three issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty, entries reflected in private chits cannot itself be a ground for confirmation of demand. Therefore, the confirmation of demand on this count is liable to set aside. Similarly, in relation to demand on cancelled invoices, I find force in the contention of the ld.Advocate for the Appellant. In his statement dated 30.11.2004 Shri Ravinder Prasad, Director of the appellant in response to question No.13 has explained that in view of the fact that the levy was new and the appellant had no experience in the field of excise, therefore, mistakes occurred in writing the invoices resulting into frequent cancellations. This statement has not been rebutted by the department by making necessary investigation with the consignees mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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