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TMI Blog2018 (6) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... s no enquiry have been made regarding the said entries by the author of the said entry Shri Chandra Prakash Agarwal - Revenue have not made any further investigation and enquiry from the author of the entry Shri Chandra Prakash Agarwal - this demand to be simply presumptive in nature without any cogent evidence brought on record - demand set aside. Demand of ₹ 2,39,574/- on the basis of loose sheet recovered from the factory premises - Held that:- The said loose paper/sheet does not lead to any evidence of procuring any dutiable inputs and/or clearance of any taxable outputs, save and except presumptions of the Revenue - Department has failed to adduce any corroborative evidence in support of the charge of clandestine removal - demand set aside. Penalty u/s 11AC and Rule 52-A of the Central Excise Rules, 1944 - Held that:- penalties are not imposable and are set aside. Appeal allowed - decided in favor of appellant. - APPEAL Nos. E/2979 & 2980/2005-EX[SM] - A/70913-70914/2018-SM[BR] - Dated:- 20-4-2018 - Mr. Anil Choudhary, Member (Judicial) Shri Kapil Vaish (C.A.) for Appellant Shri Gyanendra Kumar Tripathi (Asstt. Commr.) AR for Respondent Per: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspecting officer's. On perusal of said file a handwritten slip signed by Shri Laxmi Narain Agarwal was noticed. This slip revealed that partner was confronted with the discrepancies observed as the result of comparison of the said GR's with the invoices. In his statement dated 21/11/2001, he inter alia stated that the said differences in weight were due to the advertisement and scheme material sent along with the said goods. Such contention did not appear to be good in view of correspondence found with respect to Nagar Mal Push Raj, Tezpur. Thus it appeared that the appellant was clearing some goods without duty in lieu of gift items to be given in the Sales Promotion Scheme alongwith duty paid goods and sent 11 cartons of the said goods in place of a Fridge that he was supposed to have sent to M/s Nagar Mal Push Raj under the Sales Promotion Scheme . Further perusal of the slip indicated that extra 11 cartons of the said goods are dispatched along with the consignment of 330 cartons of the said goods. Thus a hand written letter was found to be attached to a letter dated 22/09/2001 of the appellant duly signed by Shri Laxmi Narain Agarwal and Commercial Invoice No.126 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am. Thus it appeared that the appellant was clearing some goods without duty in lieu of gift items given to the Sale Promotion Scheme alongwith duty paid goods. One diary/notebook was recovered and seized from Tata Indica car belonging to Shri Chandra Prakash Agarwal at the time of search in the factory of the appellant. On perusal of Page-40 of the said diary indicated entries Titled Milk under which some amount had been shown against each month during the year 2000. The total of the amount stated on the said page totals to ₹ 18.01 lakhs. It appeared to Revenue that this amount shown as the amount for milk is in connection with the month wise payment received against clandestine sale of unaccounted Bandar Brand tobacco during the year 2000. Based on this, a chart was prepared by Revenue as Annexure C-5 to the SCN for alleged clandestine removal. Shri Laxmi Narain Agarwal was confronted with the said Page-40 of the diary in the statement recorded on 08/11/2001 wherein he inter-alia stated that the said entries were for the movement of raw tobacco as ascertained from his father Shri Chandra Prakash, this account titling milk‟ was the account for the clandestine sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the GR's and the fact of movement of goods from one godown to the other was accepted. However the learned Commissioner confirmed the duty of ₹ 17,53,634/-. He also imposed an equal amount of penalty under Section 11AC and further penalty under Rule 52-A of Central Excise Rules, 1944 of ₹ 25,000/-. 10. Aggrieved by above order, the appellant is in appeal before this Tribunal. The learned counsel states that in spite of their best efforts they could not reconcile some of the invoices with the GR's and as such the appellant does not want to contest the demand of ₹ 5,16,960/-. The balance amount in dispute is as follows: SI No. Particulars Amounts (In Rs.) I. difference in weight between GR and invoice Rs.3,96,460/- II. sale of goods worth ₹ 18.01 lakhs (as per Revenue Laxmi Narain Agarwal in his statement dated 8 th November, 2001 accepted clandestine removal) Rs.6,00,640/- III. demand on the basis of loose paper (wherever the words tobacco or Truck Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etimes there are only advertisement and publicity goods and sometimes both advertisement goods as well as gifts are sent under the promotion scheme. The transporter is not concerned what is being dispatched, they are concerned with the number of cartons/packages and the weight and accordingly they mentioned the gross weight of the GR. Further during the season of fruits they also dispatch alongwith the finished goods packages of seasonal fruits like mango, watermelon etc., to their purchasers/distributors. The learned counsel further urges that in view of cogent explanation given here at the initial stages of investigation, the adverse view drawn with respect to a few instances where the difference in weight is significant like 100Kg, 400Kg, 1000Kg, no adverse view was required to be drawn. Moreover in view of the support of this contention at the buyers end and also moreover it is worthwhile to take note that the number of cartons and bags of finished goods as per invoice have always found to be tallying with the corresponding GR. Accordingly, prays for deletion of this demand of ₹ 3,96,460/-. 13. As regards the demand of ₹ 6,00,640/- on the basis of Page No.40 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relates to transaction of milk. Further taking note that the partners of the appellant had also made an alternative submission that the said amount may be treated as cum-duty price has got force and is more acceptable. And accordingly giving the benefit of cum-duty price confirmed the demand of duty at ₹ 6,00,640/-, thus deleting the amount of ₹ 3,22,320/- as originally proposed. 14. The learned counsel further states that without examination of the author of the said page Shri Chandra Prakash Agarwal and further without there being any corroborative evidence of the figures noted on the said page, the drawing of adverse inference is only presumptive and based on surmises having no legs to stand. Accordingly prays for setting aside the said demand in the interest of Justice. 15. As regards the demand of ₹ 2,39,574/- based on the basis of a loose paper wherein some transaction appeared to have been written without any date, the learned counsel urges that Shri Chandra Prakash Agarwal father of Shri Laxmi Narain Agarwal was confronted with the said paper in his statement recorded on 8th June, 2001 wherein he stated that these are rough calculation and which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (Tri.-Del.), wherein some photocopies of invoices were recovered which were recovered from the factory premises and there being no reference to the source of such photocopies and further not produced for verification/comparison, neither there being any confirmation from buyers regarding receipt of goods, it was held that there is no evidentiary value of such documents under Section 63 of Evidence Act, 1872. It was further observed that there is no name and identity of the person preparing such sheets nor the name of appellant is mentioned on such sheets in absence of any corroborative evidence, the allegation of clandestine removal is not sustainable on the basis of suspicionalone. 17. The learned A.R. for Revenue have relied upon the impugned order. 18. Having considered the rival contentions, I find that demand on account of differences of weight is bad as the appellant and its partners have given cogent explanation during investigation regarding difference of material weight in any consignment being on account of dispatch of advertisement and publicity material at times and also the gifts to be given under the Sales Promotion Scheme‟. I also find that the said fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Revenue. Further, I find that the Department has failed to adduce any corroborative evidence in support of the charge of clandestine removal. Accordingly, I set aside the said demand of ₹ 2,39,574/-. 21. So far penalty under Section 11AC is concerned, I find that the total demand confirmed by the learned Commissioner is ₹ 17,53,634/-. The appellant had submitted in writing that per the GR, said invoices relate to preceding years and they are unable to reconcile them fully, in order to purchase peace they have surrendered and/or not contested the said demand of ₹ 5,16,960/-. Accordingly, I find that the demand is confirmed/and or not contested, is not by way of any active clandestine removal found on the part of the appellant, but was rather surrendered by the appellant for lack of reconciliation of GRs, invoices, for whatever reason including clerical reasons. 22. Thus the balance contested demand of ₹ 12,36,674/- stands deleted and set aside by this Tribunal. In this view of the matter, I hold that the penalty under Section 11AC is not imposable and accordingly, I set aside the same. So far the penalty under Rule 52-A of CER, 1944 is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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