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TMI Blog2005 (5) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... m against payment of duty of Rs. 42,930/-. Further investigations conducted by the officers resulted in the recovery of two sets of invoices issued by the appellants, one set from the appellants' factory and the other set from their customer's premises. The invoices recovered from the appellants were all "QUADRUPLICATE" copies, while those recovered from their customers were all "ORIGINAL" copies. Some of the invoices in the two sets were found to have identical S. Nos. and dates of removal of goods. A comparative account of the particulars in the two sets of invoices could be had from Annexure I to the relevant show cause notice, which is extracted below :- ANNEXURE-I Duty calculation statement in respect of clearances of Acid Slurry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Spent Acid 11/23-4-03 13.810 2072 Extra duty-Second invoice 13.810 331 7. Spent Acid 141/23-3-03 13.140 1971 16% 315 Spent Acid 148/23-3-03 3.140 1971 Different Invoice No.-Second inv. 13.140 315 8. Spent Acid 143/26-3-03 11.730 1760 16% 282 Spent Acid 151/26-3-03 11.730 1760 Different Invoice No.-Second inv. 11.730 282 9. Spent Acid 114/26-3-03 13.270 1991 16% 318 Spent Acid 152/26-3-03 13.210 1991 Different Invoice No.-Second inv. 13.270 318 10. Spent Acid 84/26-12-02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 25,000/-. In the present appeal, it is the contention of the appellants that, in the absence of evidence of actual clearance of goods under cover of the invoices recovered from the customers, the finding of clandestine removal of goods cannot be sustained in law. The invoices in question were issued not for removal of goods but for the purpose of production before the sales tax authorities at checkpost. Had there been any clearance of goods under cover of such invoices, the customers would have taken Modvat credit of the duty paid thereon. The Department could not show that the customers had taken Modvat credit of the duty mentioned in the invoices in question. They did not even record any statement from the customers. The burden was on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the confiscated goods, the appellants do not have any grievance. They paid duty on such goods. They obtained provisional release of the goods against payment of duty at the investigative stage itself. However, they challenge the penalty of Rs. 25,000/- imposed on them by the appellate authority. Ld. DR reiterates the findings of the Commissioner (Appeals), after producing copies of the two sets of invoices. 2. After careful comparison of the two sets of documents, I have no doubt about the veracity of Annexure-1 to the show-cause notice. The demand of duty of Rs. 22,000/- is based on a set of 11 invoices which were recovered from the customer's premises. One of these customers is M/s. Sankarla Detergents and Cosmetics (P) Ltd., Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the customers should be confronted with a query as to whether they had received goods under cover of those invoices. There is no material on record to indicate that any statement of any of the customers was recorded by the Department. When the appellants denied having cleared goods under these invoices to the customers, the Department should have called upon the latter to state whether they had received any such goods under cover of these documents. Apparently, this did not happen in this case. This is a serious evidentiary lacuna, which cannot be bridged at appellate level. Hence I am constrained to accept the appellants' plea that there is no evidence, in this case, of clandestine removal of goods by them. The demand of Rs. 22,000/- is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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