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TMI Blog2019 (4) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand has been made on the basis of allegation that during the relevant period from (25/3/2003 to 28/05/2003) the appellant has clandestinely cleared 1,60,420 MT of excisable finished goods without payment of duty the allegation was made on the basis of comparison of entries in 229 Weighment slip contained in the three weighment slips of M/s Om Dharam Kanta having mark "MW" with the daily stock account RG-1 of the appellant. In the RG-1 only 51 weighment slips were found to be entered , and therefore, it was alleged that the entries which were not found in the RG -1 Register, the appellant has clearly finished excisable goods in clandestine manner without payment of duty. 3. Ld. Sr. Advocate on behalf of the appellant submits that the Commissioner erred in holding that there was a clandestine removal of 1,692.402 MT of the manufactured products without payment of duty. The finding in the impugned order is based on the presumption and assumption and is contrary to the evidence on record. It is submitted that by the Ld. Sr. Advocate in this case not a single incidence of clandestine removal which was undertaking by the appellant. The Commissioner had himself directed the verifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut considering the explanation rendered by the appellant regarding entries of 144 weighment slips which related to the finished excisable goods and cleared by the appellant and is found to be contained in the RG-1 Register the total of weight of such good were 13510.8 MT. However, in spite of submission all these evidences and invoices mentioned on the verification report by the range authority, confirmed the demand wrongly. With only 51 per weighment slips were found to be contained in the RG-1 Registered covering a quantity of 45.6 MT only that the Ld. Adjudicating Authority has also considered the weighment slips in respect of incoming of consignment including furnished oil as relating to the clearance of finished excisable goods found with necessary document to that effect were filed by the appellant and the same were verified by the range superintendent also. 5. The Ld. Sr. Advocate further submits that it is well settled that the Department can make the charge of clandestine removal only on the basis of sufficient and tangible evidences. In the present case, there is no evidence at all of any clandestine removal. The demand has been confirmed merely on the basis of surmises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. In explanation has been given in the Show Cause Notice/ impugned order as to how these weighment slips were recovered by the Central Excise Officer without following the due process of law. The name of the person from whom such weighment slips were recovered have never been disclosed. There is nothing on record to show that the Central Excise Authority has recorded the statement of the person from whom the weighment slips have been obtained. The Commissioner further erred in holding that the listed documents were presented by the person of the appellant which is contrary to the allegation in the Show Cause Notices that weighment slips in question were recovered from the gate of the appellant. The weighment slips has not been authenticated by the Excise Department by examining the person who has prepared or signed in the purported weighment slips. In the situation no reliance could be placed on the said authenticated weighment slips. 7. Ld. Advocate submits that the entire case of the Department is based on the alleged entry in the weighment slip book. Since the alleged recovery of the weighment slips itself is not legal and contrary to the provisions of law, no reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CBEC Circular No. 720/36/2003/CX dated 29/05/2003. In fact the Commissioner has issued the Show Cause Notice dated 5/4/2004 to the appellant on the ground that during period 27/3/2003 to 9/7/2004, no excise duty was chargeable on non alloy steel wires manufactured by the appellant and the appellant had wrongly cleared the said wires of payment of Excise duty during said period. In spite of raising this issue the Ld. Sr. Commissioner has not given any finding to that effect in the impugned order, it was further submitted that there is no liability of duty on entire quantity on 1692.402 MT of the alleged clandestinely cleared by the appellant following the Supreme Court decision in case of Technoweld Industries (supra) and board circular dated 29/5/2003. Ld Advocate also submits that the Show Cause Notice in the instant case was also barred by limitation the document was received on 29/05/2003, whereas the Show Cause Notice has been issued on 24/08/2005 that is after more than 2 years. In the last, it was submitted there is no case of imposition of any penalty. Ld. Advocate submitted the Commissioner erred in imposing the penalty on Managing Director, Authorised Signatory and prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the parties and perused the appeal records. 14. The issue involved in this case is as to whether the appellant is indulged into clandestine removal of the goods as alleged in the Show Cause Notice and upheld in the impugned order merely on the basis of weighment slips received from the weighbridge. The recovery of 3 registers which is weighment register from the weighbridge indicated mark "MW" as per Department was the record of the clandestine removal made by the appellant. It is on record the recovery of the weighment registers were not made under Panchnama and the reliance of same cannot be placed for alleging the clandestine removal against the appellant. It is also held by the Adjudicating Authority these weighment slips were recovered from gate office of the appellant which has been denied by the appellant. In absence of the assumption of the said document without proper panchnama reliance cannot be placed on said record. Further we find that the appellant has categorically desired to have the cross examination of rawmaterial supplier and the incharge of the weighbridge, which had been denied by the Adjudicating Authority. This denial of the cross examination the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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