2004 (1) TMI 134

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..... ut the cover of proper duty paying documents. Besides on detailed scrutiny of records of the factory and that of a transporter company it was revealed that during the period 8-10-97 to 29-3-98 the main appellants had removed 345 kgs. of Mefanamic Acid I.P., without payment of duty due thereon. The duty evasion of Rs. 38,813/- was alleged on this quantity. 3.The allegation of evasion on the quantity of 85 kgs is based on the evidence that though the invoices were prepared and the goods were physically removed from the factory premises, the duty due thereon has not been debited in the RG 23A or PLA, though it is claimed in defence that there was sufficient balance in the RG 23A account. The defence is that, the tempo driver picked up the in .....

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..... corroborative evidence to show that the goods have moved from the factory to the transporter. In fact it is claimed that the goods mentioned in the said LRD are totally different from what the appellants manufacture. 6.I have carefully considered the submissions from both sides. So far as removal of 85 kgs of material is concerned, it is an undisputed fact that, the removal was without payment of duty. The existence of sufficient balance by itself does not extinguish this act of evasion. The plain reading of Rule 173Q shows that, mere fact of removal of goods without payment of duty attracts penalty. The appellants themselves have admitted the duty liability and paid the duty based on the rate applicable to SSI unit. Since there are no f .....

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..... a document prepared by the appellants, but by a transporter by incorporating the appellant's name for whatever reasons, without further corroboration, is of a doubtful nature and not acceptable. Even going by the theory of preponderance of probability as relied upon by the learned Commissioner, the department is required to establish, that the probability of L/Rs pertaining to removal of 345 kgs of the said goods was preponderant in this case. Since it has come on record that the L/Rs show a different commodity, there existed the other probability that the said L/R had nothing to do with the appellant and the contents thereof should be left for the transporter to explain. In the circumstances, the duty demand on the 345 kgs. cannot be susta .....

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