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TMI Blog2016 (7) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... charging the Central Excise duty liability. The reasons assigned for confirmation of duty demand in the impugned order are as under:- i) The Department has recovered photocopies of four invoices from some sources, showing clearance of sponge iron fines to M/s. Rooplaxmi Industries Pvt. Ltd., which are not accounted for in books of the appellant company; whereas, invoices bearing same serial number and date were issued by appellant to M/s. Ram Dayal Verma and M/s. Ajaya Shanker Verma for sale of Dolachar, duly entering such sale particulars in the books of accounts. Further, it has been alleged that both these firms are not traceable in the address indicated in the invoices. (ii) The Department has recovered three loose sheets of papers pertaining to the month of July -2011, showing removal of sponge iron fines, sponge iron lumps and M.S. Ingots wherein the names of the buyers are mentioned in abbreviated form. (iii) 26 nos. of Gate Pass Books were recovered for the period 25.03.2010 to 31.03.2010 and 05.04.2011 to 03.08.2011 by the Department. On comparison of the gate passes for July 2011 with the loose papers recovered from the factory of the appellant, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Rexin Sea India Ltd. - 2003 (156) ELT 147 (CESTAT) (e) Rama Shyama Papers Ltd. Vs. CCE - 2004 (168) ELT 494 (CESTAT) 3.3 With regard to recovery of three loose sheets of papers pertaining to the period July' 2011, showing alleged removal of sponge iron fines, lumps and M.S. ingots, the submissions of the appellant are that those papers are photocopies only and in absence of the originals thereof, reliance cannot be placed on the photocopies. That the panchnama drawn in the unit of the appellant does not give a description of any of the resumed records and that the person from whose possession these three loose sheets (photocopies) have been recovered and the person who has written those loose papers have not been identified or questioned regarding the contents of those papers. That the transporters and purchasers have not been identified and questioned and no confirmation has been obtained from them regarding the clearances of alleged excisable goods by the appellant. That the statements of Shri Ajay Kumar Dewangan, Dispatch Clerk and Shri Anant Dave, Director of the appellant company are neither voluntary nor true and were written as per the wishes of the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under instructions of any of the Directors or officers of the appellant company. With regard to the Daily Production Report, alleging clandestine clearance of 846.89 M.T. of finished goods, the submissions of the appellant are that the alleged slips are not the official records of the appellant and do not reflect the actual production and that the person who has prepared those slips has not been identified and questioned by the Department as to the authenticity of the contents of those slips. Regarding shortage in stock of goods, the submission is that the visiting officers conducted physical verification by eye estimation only, without undertaking the actual weighment of goods. 4. Heard Shri Kamal Jeet Singh, ld. Advocate for the appellant and Shri Vaibhav Bhatnagar, ld. D.R. for the Revenue and examined the appeal papers and the written submission filed by the appellant during the course of hearing of appeal. 5. The present proceedings have been initiated by the Department based on the photocopy of invoices bearing Nos. 01059 dated 07.06.2011, 01073 dated 08.06.2011, 01146 dated 14.06.2011 and 01331 dated 27.06.2011 gathered from some sources, which were allegedly issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant against supply of Dolachar was disputed by the Department on the ground that it is not feasible to trace out the buyers on the basis of vague address furnished by the appellant. In arriving at such conclusion, the SCN has referred to four persons named in the panchnama, who have stated that they are not aware of the whereabouts of the buyers of Dolachar. In this context, I find from the appeal paper book that the appellant had enclosed the affidavits sworn by Shri Ram Dayal Verma and Shri Ajay Shankar Verma, who have given the particulars of voter ID and voter slip issued in their behalf by the concerned authorities. Further, they have also stated that the consignments of Dolachar as per the disputed invoices were purchased by them from the appellant company. I also find from the appeal paper book that the drivers of the vehicles used for transportation of Dolachar have confirmed through affidavits that they have delivered the appellant's goods at the site of above named buyers. The above stated affidavits together with their enclosures irrefutably establish the existence of the buyers of Dolachar in the address indicated in the invoices and that the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi, reported in 2013 (290) ELT 545 (Tri.-Del.) has held that suspicion however grave cannot replace proof and that the Revenue is not relieved altogether of burden of producing some credible evidence in respect of the facts in issue. In the case in hand, admittedly the Revenue has not brought any tangible evidence to discharge its burden of proof of clandestine removal of goods. 8. I find that based on Annexure F-1 and Annexure F-2 of the SCN, the impugned order has confirmed the duty demand on the alleged ground that during the period March' 2010 and April to July' 2011, the appellant had purportedly cleared sponge iron fines, sponge iron lumps and ingots to various buyers named in the reversed side of the gate passes without discharging the Central Excise duty liability. On perusal of the appeal paper book, I find that some of the alleged buyers named in the SCN through affidavits denied having received any quantities of sponge iron or MS ingots as per the particulars reflected in the reverse side of the gate passes. Further, the owners of the vehicles referred to in the annexure to SCN have also confirmed that they have transported Dolachar from the factory of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord that the Department has not carried out any physical verification of alleged shortage in stock and the same was based on eye estimation only. Thus, in absence of actual physical weighment of stock of finished goods, the allegation of shortage, in my considered view, is not sustainable. 12. The statement of Shri Ajay Kumar Dewangan, Dispatch Clerk, recorded during cross examination (reproduced at page 51 in the impugned order) reveals that the appellant had not removed the excisable goods without the Central Excise invoices and that he had not voluntarily admitted to pay the duty and the statement to that effect was written by the Officers of Central Excise Department. Further, Shri Anant Dave, Director of the company has retracted from his statement through the reply to the SCN that duty payment was made voluntarily towards alleged clandestine removal of goods. The ld. Commissioner of Central Excise has not considered such statements in proper prospective and discarded the same on the ground that the earlier statements were not retracted immediately. The initial admission and alleged voluntary payment of the duty amount by Sh. Anant Dave, Director and Sh. Ajay Kumar Dewangan, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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