9911796707
TMI Blog2002 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... brand names as Syed Absar, Tulsi Kishan and Pathan. The firm has got two factories; one at Ghoorpur and the other at Phoolpur both in Allahabad. For both these factories; separate central excise registrations had been obtained. The other appellants, namely, Shri Mohd. Akhtar, Shri Aflaq Ahmed, Shri Akhlaq Ahmed, Sh. Hasnain Ahmed and Shri Sahabuddin Khan, were partners in the firm. The factories remained under the physical control of the Excise Department till 13-10-1993. On receipt of secret reliable information that the appellants were indulging in evasion of excise duty by suppression of production of their branded hand made biris and by clandestine removal thereof without payment of duty, simultaneous search was made on 24-3-1994 in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rves to be set aside. 4.The learned SDR, on the other hand, has not been able to contest this contention of the Counsel. 5.The bare perusal of the record shows that the duty demand of the disputed amount has been formulated and confirmed simply on the basis of the weekly reports and ledgers which contained entries regarding the unaccounted kacchi biris. There is nothing on the record to suggest if any effort was made to collect evidence regarding the purchase of the raw material, consumption of the electricity for the manufacture of the branded biris and clandestine removal of the same, to various parties. No statement of any supplier of the raw material was recorded. No record pertaining to the electricity consumption during the disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E, 1991 (51) E.L.T. 434 (T). There was very heavy onus on the Department to prove the suppression of production and clandestine removal of the goods during the disputed period when it was under their physical control, but they have failed to discharge the same. Therefore, the duty demand confirmed on the Ghoorpur factory premises of the appellants by the Commissioner cannot be sustained. 7.On the Phoolpur factory of the appellants, the demand of Rs. 48,21,862/- has been confirmed. Out of this amount, demand of Rs. 4,26,438/- had been based on two challan books which were resumed by the officers at the time of checking from the factory premises as in those challan books Sl. Nos. 1 to 11 were found having only triplicate blank copies of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gedly sold the goods without payment of duty. In the absence of any cogent and convincing positive evidence, the duty demand could not be confirmed on the appellants of the balance amount. In this context, the reference may be made to the cases (i) M/s. Icycold Con. Ent., 1994 (69) E.L.T. 337 (T); (ii) M/s. Khanna Rubbers, 1996 (82) E.L.T. 251 (T); and (iii) M/s. Ganga Phosphorus Chem., 1995 (77) E.L.T. 589 (T), wherein it has been observed that the duty demand in the absence of corroborative/positive evidence would not be sustainable under the law. Therefore, the duty demand of the balance amount of Rs. 43,95,424/- could not be legally confirmed on the appellants and the same is ordered to be set aside. 9.Regarding imposition of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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