9911796707
TMI Blog2002 (3) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ality control stage; that they were clearing their goods from the factory directly to customers as also to different selling centers throughout the country known as Diagnostic Centers; that unsold tapes and cassettes from Diagnostic Centers and sale returns from customers used to be received at Bhopal where from they were re-dispatched to other Diagnostic Centers for being sold; that the entire case of the department is based on surmises and conjectures and on insufficient evidence to establish suppression of production and clandestine removal; that the factory of the appellants is situated in a village which is 20 miles away from Bhopal and the excisable goods have to be transported to Bhopal; that if the case of the Department is true the goods were bound to be caught red handed while in the process of being removed/transported from the factory. The learned Advocate further mentioned that the allegation of suppression of production has been made on the basis of entry of 3800 E-185 cassettes made in a diary; that the note in the diary was rebutted by pointing out that note was to the effect that the production of 3800 cassettes of E-185 type was to be undertaken by the Executive D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority is required to consider the stand taken by the assessee and give a finding in respect of such stand. Reliance was also placed on the decision in the case of Ebemezer Rubbers Ltd. v. CCE, Ahmedabad, 1986 (26) E.L.T. 997 wherein it was held that charge of clandestine production and removal of goods merely on the basis of two sets of invoices is incorrect. 4. The learned Advocate also mentioned that the evidence in support of the charge of clandestine removal is that the figures of clearance as per gate-passes is different from the quantity of tapes/cassettes booked with railways as per certified copies of railway receipts and the statements recorded from Shri S.M. Rajadhayax, Shri S.R. Agrahari, Shri A.K. Godbole, Shri Shiv Kumar Jadav, Shri Sanjay Agarwal and Shri Harish Gupta. The learned Advocate mentioned that Shri Sanjeev Agarwal, Executive Director of the appellants, had deposed that the difference between the two quantities could be due to re-despatch of returned goods; that Shri Agarwal promised to produce the evidence regarding return of the impugned goods; that he could not, however, produce the evidence as he resigned from the appellant company and left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods. Reliance was also placed on the decision in the case of CCE, Patna v. Universal Polyethylene Indus., 2001 (130) E.L.T. 228 (Tribunal), wherein it was held that charge of clandestine removal and clearance is a serious charge against the manufacturer which are required to be discharged by the Revenue by production of sufficient and tangible evidence. 5. Countering the submissions Shri R.C. Sankhla, learned D.R., submitted that the factory premises were visited by the officers on the basis of intelligence about the manufacture and removal of excisable goods by the appellants without payment of duty from their factory; that the scrutiny of the documents withdrawn from the factory revealed that most of the consignments were transported by railway; that the officers obtained from railway authorities railway receipts and forwarding applications; that the officers also collected documents from the appellants banks regarding discounting facility; that during the search of the factory premises some documents were torn by factory persons and thrown; that these were found to be issued note of video tapes issued for packing without mentioning in the statutory record; that simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed a speaking and well reasoned order; that the Adjudicating Authority has given a clear and specific finding of cross-examination; that the cross-examination of their employees is not to be allowed, and if the appellants really wanted to produce their defence, nothing prevented them from producing those employees before the Adjudicating Authority. In reply the learned Advocate relied upon the decision in the case of Shalimar Agencies v. Commissioner of Customs, 2000 (120) E.L.T. 166 (Tribunal) wherein it was held that if a person is summoned for cross-examination does not appear, the documents on which he has to be cross-examined is not admissible as evidence without such cross-examination. 6. We have considered the submissions of both the sides. Regarding difference in the figures of clearances made from the factory as per gate passes and figures of clearance as per Railway Receipts, we observe that the Adjudicating Authority has given his findings that the dispatch of goods had not been disputed by the appellants. The appellants had not disputed the same before us also. Their defence is that the unsold tapes/cassettes which were returned to Bhopal were re-dispatched by rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said cassettes. Their conclusion was strengthened from the telegram sent to one Narsimha Rao of Vijaywada intimating him that his ordered goods 3800 of E185 were ready for despatch. The appellants have not explained anything about the said Inter Office Memo and the telegram sent by them to said Narsimha Rao. They have on the other hand emphasized that R.N. Sharma, Dy. Manager (Production), was not produced for cross-examination and Shri Agrahari, Account Clerk had mentioned that he had no knowledge that E-185 cassettes were ever manufactured. In a case when a unit is involved in clandestine manufacture and removal of goods, it is possible that all the hands working in unit may not be taken into confidence. Shri Sharma, on the other hand, was Deputy Manager Production of the appellants and obviously would know about the goods manufactured in the factory. There is nothing on record also to suggest that Shri Sharma retracted his statement anytime. Taking into consideration all the facts coupled with Inter Office Memo and said Telegram we agree with the findings reached in the impugned Order by the Adjudicating Authority that the appellants were manufacturing and clearing goods wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
