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TMI Blog2017 (11) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned order of the Tribunal also recorded the fact that the appellant's attempt to establish corelation failed, movement of bales from the factory to Coimbatore on payment of duty is evident from the excise invoices but there was no corresponding document to show that return, bale wise, of the goods from Coimbatore. The Tribunal found that return of duty paid goods from Coimbatore either to the appellants SMP Godown or from factory at Roha had not been established and there were no entries in the factory Inward Register showing return of goods under Rule 173H of the Central Excise Rules. Appeal dismissed - decided against appellant. - Central Excise Appeal No. 14 of 2007 - - - Dated:- 12-10-2017 - A. S. Oka And A. K. Menon, JJ. Mr. M. H. Patil a/w. Mr. C. S. Biradar for the Appellant Mr. Swapnil Bangur for the Respondent JUDGMENT ( Per A. K. Menon, J. ) 1. This appeal was admitted on the following questions of law: (a) Whether the Tribunal was justified in upholding a charge of clandestine removal in the absence of any documentary evidence to show acquisition and consumption of unrecorded raw material and manufacture of unaccounted goods? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down which was situated two kilometers away from the assessee's factory. Grey fabrics were received from the godown and onward delivery to the assessee's factory for processing. It was found that large stock of the processed fabrics for bales were also stored in the godown. 4. The assessee's employee in charge of the Excise informed the officers of the revenue that fabric brought from Coimbatore had been kept in godown for repacking. Inquiries revealed that the security personal reportedly revealed that no repacking of any kind was carried on at the godown. Scrutiny of the Material Loading Register and the factory gate outward register revealed that the 101 bales were the same goods which were received back from their Coimbatore dealers for repacking and giving fresh Central Excise Bale numbers. The assessee produced a set of documents on 2nd July, 1997 showing that 596 bales were being sent from Coimbatore to Bhiwandi, but the description of goods in the document revealed school bags, socks and printed fabrics while the investigation revealed that the assessee never manufactured School Bags or Socks. 5. A Show Cause Notice came to be issued proposing recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 (Tri Ahmd)] 8. On the other hand Mr. Bangur on behalf of the respondent has opposed the appeal and submitted that the appeal does not raise any substantial question of law. The impugned order does not record the fact that the assessee had been able to establish any co-relation between the goods cleared by them on payment of duty and goods on which duty was demanded and as confirmed by the impugned order. He submitted that in the absence of such co-relation there is no occasion for holding that goods were cleared after payment of duty. He further submitted that reliance placed in order in Notice of Motion No. 1590 of 1997 in Suit No. 1870 of 1997 is misconceived and misleading. The Appellants had failed to establish their case on facts and the Tribunal had correctly rejected the Appellant's contentions. 9. Having heard the learned counsel on both sides at length and having considered the record, we find nothing amiss in the conclusions of the Tribunal. The assessee's contentions lack merit. The Tribunal found that the report made by the Court receiver did not support the version of the assessee that processed fabrics taken over by the Court Receiver and sent bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been suppression of fact and contravention of the provisions of the Act with an intention to evade payment of duty. The entire quantity of 905 bales were thus subjected to payment of duty. 13. Essentially these are finding of the fact and no question of law arises in the facts of the present case. Mr. Patil had submitted that clandestine removal of goods should be proved with cogent and tangible evidence and cannot be on the basis of assumption or surmises. He had relied upon some judgements in that behalf. 14. In Oudh Sugar Mills Ltd (supra) the allegations were based only on calculation of raw material fed into the process or on working of the machinery as noticed during test inspection. There was no tangible evidence on record to substantiate failure to account for the quantity of sugar. The Supreme Court held that the conclusion in that case were based on unwarranted assumptions which cannot find legal basis, for the findings were based on assumption and inferences. We do not see how this judgment is of any assistance to the appellant assessee in the present case. We are of the view that the burden was on the assessee to establish co-relation of the goods which it had f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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