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TMI Blog2000 (12) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... destine manufacture and clearance of their products. The notice also proposed penal action. The said show cause notice was adjudicated upon by the Commissioner of Central Excise, Bhubaneswar, who after considering the appellants submissions dropped a portion of the demand as proposed in the notice and confirmed demand of duty of ₹ 44,41,664.00. An equivalent amount of personal penalty was also imposed upon the appellant under the provision of Section 11AC of Central Excise Act, 1944 and Rule 173Q of Central Excise Rules, 1944. Apart from this personal penalty of ₹ 50,000/- was imposed on Shri Ashok Maheshwary, Managing Director and ₹ 20,000/- on Shri Gyan Deep Nandy, Asstt. Manager under the provision of Rule 209A. The above order of the Commissioner is impugned before us. 4. We have heard Shri S.K. Bagaria, ld. Advocate duly assisted by Shri J.P. Khaitan Shri Partha Banerjee, Advocates appearing for all the three appellants and Shri A.K. Chattopadhyay, ld. JDR for the Revenue. 5. Shri Bagaria has argued that the appellants are procuring the HDPE granules from three indigenous manufacturers i.e. M/s. Reliance Industries Ltd., M/s. Indian Petrochemicals In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices etc. showing clearances relatable to the said issue memos from the other factories, the appellant submitted the same to the Commissioner. All the duty paying documents of the other manufacturers in respect of the issue memos enumerated in Annexure C to the show cause notice were placed before the Commissioner. He submits that the Commissioner accepted the fact that in respect of some instances, issue memos were relatable to the clearances of the other factories and after satisfying about the duty paid character of the same by the other manufacturers, dropped the demand of duty. However, in respect of 11 cases where the issue memos were admittedly belonging to the other two local units, Commissioner rejected the appellants submission by alleging minor discrepancies such as different vehicle numbers and different date etc. He submits that admittedly the notice relied upon the issue memos of the other factories similarly situate, the very credibility of the officers seizing the records from their units is put under doubt. 7. In any case and in any view of the matter submits the ld. Advocate that the Revenue s case is entirely based upon the issue memos recovered from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was endorsed by the central excise officers as verified and found correct . Similar endorsements were made in respect of all quarterly returns filed subsequent to the visit of the officers. Their stocks were also physically checked and found to be tallying with the stock in RG-1 on the budget day. As such submits the ld. Advocate that the findings arrived at by the adjudicating authority on the basis of the internal records which were being maintained in a rough manner and with which actual production and clearances could always differ, were not justifiable findings. 10. He also submits that the impugned demand has been confirmed in an arbitrary manner by the Commissioner as would be evident from the fact that as per the show cause notice (internal page 3 of the notice) the alleged excess production of HDPE tapes during January, 1993 to 11-11-1994 was 54149.099 Kgs. This quantity was also mentioned in annexure B to the show cause notice (at page 12 of paper book). As per the department, it is out of the said tapes that fabrics/sacks were manufactured at the appellants factory. The demand in respect of fabrics/sacks only relates to a part of the aforesaid period, that is, from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained that the internal issue notes issued by them were in the shape of directions to their staff to supply a particular quantity of their product to their customers. The said quantity might not be cleared under one gate pass on one day, but the same can be split into different gate passes issued on two or more consecutive days, depending upon the availability of their product in question. In these circumstances the quantity as reflected in issue notes cannot be fully tallied with the particulars in the gate passes. The question now arises is as to whether the quantities as shown in the issue notes are required to be held as clandestinely manufactured by the appellants and cleared without payment of duty. The appellants have strongly opposed the above findings on the ground that no adverse conclusion can be drawn based upon the sole entries made in the said issue notes. We find force in the above submission of the Advocate. The onus to prove the clandestine manufacture of the goods is very heavily upon the Revenue. There is no other corroborative evidence on record in the shape of procurement of raw materials or consumption of electricity, or in the shape of statement of workers e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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