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TMI Blog2017 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1985. On 18.02.2004, the Central Excise Officers of Anti Evasion Unit, Bolpur Commissionerate, visited the appellant's factory and seized some incriminating documents appears to be relating to production of Pig Iron & Iron Skull. They recovered a note-book alleged to be maintained by Shri Arun Kumar Das, Manager (Operation) of the Appellant Company. It appears from the note-book and daily production account, that there was a difference of the quantity of production during the period 01.01.2002 to 25.07.2002. A Show-cause notice dated 28.06.2004 was issued proposing demand of duty along with interest and to impose penalties. The Adjudicating Authority confirmed the demand of duty of Rs. 19,54,294/- together with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of the Appellant Company admitted that the said diary was written by Shri Arun Kumar Das. In this context, the ld.Counsel drew the attention of the Bench to the statement dated 07.06.2004 of Shri Manish Seth, wherein he stated that he cannot recognize the handwriting of the documents. Therefore, the contention of the ld.A.R. on this issue cannot be sustained. 6.2 I find that the appellant from the very beginning disowned the said note-book. It is noticed that the handwriting of the said note-book is of Shri Arun Kumar Das, as claimed by the visiting Central Excise Officers, could have been examined by the handwriting expert, which was not done. Further, the Commissioner (Appeals) observed that Shri Arun Kumar Das was summoned under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Hon'ble High Court and one of the cases was even taken up before the Hon'ble Supreme Court. All the three of them had been dismissed which confirms that the view taken by this Tribunal in the earlier cases lays down the correct law in the matter. Even though the learned Special Counsel for the Revenue did not challenge the correctness of the decisions cited as above by the learned Senior Advocate, and perhaps rightly so, in the light of their being approved by the higher judicial fora, he had contended that such cases have to be decided on the principle of preponderance of probability. It was not necessary for the Revenue, nor possible, to establish the cases of clandestine manufacture and clearance with mathematical precision as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not a case where there was no evidence of clandestine manufacture and clearance. In the Umiya Chem (supra) during the course of search, shortage of finished goods was noticed when compared with RG-23A Part I register. The partner of the firm had also admitted illicit clearance. Broker's statement gave details of commissions received against sale. There was, therefore, evidence regarding illicit clearance. In the third case of Ureka Polymers, the department had obtained the statement of raw material suppliers and also of finished goods dealers. Since no regular records were maintained by the assessee to show electricity consumption, as to how much electricity was consumed, the submission of the assessee was rejected. This again was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributors or dealers, record of unaccounted raw material purchased or consumed and not merely the recording of confessional statements. In yet another decision of a co-ordinate Bench of the Tribunal [Pan Parag India v. CCE, 2013 (291) E.L.T. 81], it has been held that the theory of preponderance of probability would be applicable only when there are strong evidences heading only to one and only one conclusion of clandestine activities. The said theory, cannot be adopted in cases of weak evidences of a doubtful nature. Where to manufacture huge quantities of final products the assessee require all the raw materials, there should be some evidence of huge quantities of raw materials being purchased. The demand was set aside in that case by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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