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TMI Blog2019 (5) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... er will also be accordingly. No transporter will take upon him the liability of 3x quantity of goods when he is actually carrying x quantity of goods. In this case, the transporter not only issued GCNs but has also maintained computerised record of the goods transported presumably because he is dealing with two large companies. Both the GCNs and the statements by the transporter show the actual quantity of goods transported by weight. There is sufficient evidence of clandestine removal by SPPL. It is impossible to have every single document to show with mathematical precision the clandestine removal starting from raw material to their production and clearance because by its very nature, clandestine removal is done without recording the figures. If all figures were recorded faithfully in the documents there will not be any clandestine removal. Therefore, in each and every case of alleged clandestine removal the facts and circumstances must be evaluated to come to a conclusion if there is sufficient evidence of clandestine removal or otherwise. It is true that the officers have searched the premises of SPPL almost one year after the initial detection in the premises of M/s VH. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid accordingly. Since, the goods have to be carried from M/s SPPL in Hyderabad to M/s VH in Madurai, a transporter was engaged and the transporter issued the Goods Consignment Notes (GCNs) in respect of each of the consignments. The transporter, as is the normal practice, charged for transportation on per-kg basis. Therefore, the exact quantity of the jumbo rolls cleared in terms of the weight was available in the GCNs issued by the transporter with respect to each of the individual invoices. Further, a computer printout was taken from the transporter's office giving details of all the consignments which they had transported. Further, a few test reports by SPPL were sent by SPPL to M/s VH, their buyer. These test reports of SPPL were recovered by the officers from the premises of M/s VH. 3. When the test reports, the GCNs and the invoices were correlated with one another, the quantity of the alleged clandestine removal could be worked out and accordingly, a table was prepared and amended to the show cause notice demanding Central Excise duty on the goods allegedly clandestinely removed by M/s SPPL. The details are enclosed as annexure E to the show cause notice. 4. Learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts and no documents, whatsoever, were recovered during the search proceedings and therefore, the demand cannot be confirmed on this ground. He further argued that the GCNs are raised by the transporter on the buyer and not by the appellant, although they pertain to the goods cleared by the appellant and therefore, they cannot be relied upon. The transport freight is paid by the buyer and not by SPPL. The department did not produce any weighment slips supporting that the weights recorded in the GCNs as correct. He also argues that the limitation has to be applied within one year from the date on which the department has come to know about the alleged clandestine removal and the demand has been raised beyond that period. He therefore, prays that the impugned order may be set aside and the appeal may be allowed. 6. Countering the arguments of the learned counsel the learned departmental representative submits that although there could be inaccuracy in the first appellate authority mentioning in the order that consignments of 3000m were not cleared by the appellant, as can be seen from the annexure that in cases where there is no difference between the length of the roll indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The test reports are not of any outside agency but were prepared by the lab of the appellant themselves. He would argue that the learned counsel is not correct in stating that since their test reports are for internal use, reliance cannot be placed on them. Learned departmental representative would argue that in case of clandestine removal, where there is unaccounted removal of goods, evidence can only be gathered from other private records and it cannot be gathered from excise records. The test reports qualify as evidence in this case. He agrees that no incriminating documents were recovered during the search of SPPL conducted by the officers almost one year after the initial search of M/s VH. He, therefore, argues that there is sufficient evidence based on the records available to show that goods were clandestinely removed in many cases misdeclaring 3000m rolls as 1000m rolls. On the last question of limitation, he would submit that there is no basis for the argument of the learned counsel for the appellant that the demand has to be issued within one year from the date of the department coming to know about the clandestine removal. He points out that section 11A has only two dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii) Kothari Pouches Ltd Vs CCE, New Delhi - 2001 (135) ELT 531 (Tri-Del.) (viii) A. Tajudeen Vs UOI - 2015 (317) ELT 177 (SC) (ix) UOI Vs MSS Food Products Ltd - 2011 (264) ELT 165 (MP) (x) CCE, Ludhiana Vs Renny Steel Castings (P) Ltd - 2012 (283) ELT 563 (Tri-Del) (xi) CCE, Mangalore Vs Pals Microsystems Ltd - 2011 (270) ELT 305 (SC) 8. He further, argues that the entire demand is based on assumptions and presumptions and does not sustain. 9. Learned departmental representative, on the other hand argues that nobody knows as to what quantity of goods were removed better than the transporter who receives the goods from the consignor and delivers it to the consignee and receives the payment for this service. I find that the documents of the transporter in this particular factual matrix is quite relevant because the goods have to be carried for a very long distance and the liability of the transporter for transporting the goods as well as the payment for transportation requires him to record the actual quantity of goods being transported. It does not matter whether the seller or the buyer pays for transportation. Nobody will pay for 3x quantity of goods when only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in each and every case of alleged clandestine removal the facts and circumstances must be evaluated to come to a conclusion if there is sufficient evidence of clandestine removal or otherwise. It is true that the officers have searched the premises of SPPL almost one year after the initial detection in the premises of M/s VH. If the search was conducted prior to this date they possibly would have found more evidence. However, my decision in the present case is only based on the evidence available on record and I find that there is sufficient evidence to show that there was clandestine removal of the goods. Accordingly, I find no infirmity in the order of the first appellate authority and the impugned order requires no interference. On the question of limitation, I find that section 11A of Central Excise Act provides for demand to be raised within five years from the relevant date in case of suppression of facts which has been the present case. I do not find any basis for the argument of the learned counsel for the appellant that the demand must be raised within one year from the date on which the department comes to know of the alleged clandestine removal. In conclusion, I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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