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TMI Blog2017 (10) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... enue that respondent clandestinely removed raw materials and finished products as revealed from search operation carried out to its factory on 18/6/2003. Physical stock taking, using parallel invoices resulted with following discrepancy: Input/ Raw materials Stock as per record Physical stock found Shortage C. Ex. Duty in Rs. Pentane 45000 Ltrs Nil 45000 Ltrs 81720 MTO 70179 Ltrs Nil 70179 Ltrs 167307 Total 249027 Finished Products RKS-I 65274 Lts Nil 65274 Lts 125326 RKS-II 170400 Ltrs Nil 170400 Ltrs 313536 RKS-III 64930 Ltrs Nil 64930 Ltrs 114277 Total 553139 1.1 Shri Premchand Sharma, Excise Clerk of respondent failed to explain reasons of shortage i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 100 to 150), and no. 34 (sr. no. 130 to 140 handwritten and 107 & 108 pre-printed). It is seen from the seized documents that at sr. No.34 three sets of invoices carry same serial nos. (Invoice no. 131- 3 times used for three different customers); (invoice no. 133 used 2 times for two different customers), (invoices no. 107 and no. 108 were parallel in book no. 32). Further all the invoices from book no. 34 were not accounted for in the RG1/ daily production and clearance register. It was admitted by Shri Khimji on 20/6/2003 that above said incriminating documents were prepared by his excise clerk on 18/6/2003 for material already dispatched prior to that date; and these documents were prepared for making adjustments. His signatures were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside the adjudication resulting in refund. Revenue being aggrieved by the order of that Authority has come in appeal praying to restorer adjudication consequences. 4. Revenue submitted that statement dated 18/6/2003, 20/6/2003 and 23/6/203 of Shri Khimji Kataria were relied upon by Adjudicating Authority and retraction of his statement dated 18/6/2003 by affidavit dated 16/7/2003 was unreliable. Similarly statements of employees remained un-retracted. The respondent by letters dated 13/8/2003 and 16/12/2003 informed that it shall deposit the evaded duty. Such payment was also made on 20/7/2003 and 15/2/2003. Therefore order of learned Commissioner (Appeals) is baseless. 4.1 The Respondent on the other hand supports order of learned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appropriate adjudication. Un-retracted statement dated 18/6/2003 of Shri Vilas Kambli, proved maintenance of unreliable record and no account of naptha purchased from Jeetubhai was recorded. The purchases from him was without bill. 5.2 Relying on the decision of Hon'ble Tribunal in the case of Neminath Fabrics [2008 (89) LT (CESTAT-Ahmd] part of the demand was set aside by learned Commissioner (Appeals) as time barred. But such decision of the Tribunal having been set aside by Hon'ble High Court of Gujarat as reported in the case of Commissioner of Central Excise, Surat-I Versus Neminath Fabrics Pvt. Ltd. [2010 (256) E.L.T. 369 (Guj.)], order of learned Commissioner (Appeals) is erroneous. Further the Hon'ble High Court of Gujarat in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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