Customs, Excise and Gold Tribunal - Delhi
Dhampur Sugar Mills Ltd. vs Commissioner Of Central Excise on 1 March, 1999
Equivalent citations: 1999ECR569(TRI.-DELHI), 1999(114)ELT632(TRI-DEL)
ORDER C.N.B. Nair, Member (T)
1. The impugned order demanded Central Excise duty of Rs. 16,891.20 and imposed a penalty of Rs. 10,000/- on the appellants. The allegation was that the appellants had cleared a consignment on 10-2-1993 of 81.60 M. Tonne of ALH without payment of duty.
2. Arguing the appeal, learned Counsel, Shri Ashok Sagar submits that the only material relied upon in the proceedings is an entry in the factory's Inward Outward Register which shown a clearance on 10-2-1993 by Truck No. MHO 4C 724 under internal GP No. 5382-Calcutta. He submits that the relevant GP1 for this entry is GP No. 53, dated 11-2-1993. In fact there was no clearance on 10-2-1993 of the goods. He also submits that the appellant had charged the entry in the Inward Outward Register itself as having been made by someone other than the Register Keeper. He also submitted that the purported clearance had been investigated by the Central Excise Range Authorities and a report has been sent on May, 1993 wherein he reported that on 10-2-1993 only 3 clearances were made under GP1 50,51 and 52, and clearance under GP1 53 was made only on 11-2-1993. He submits that in spite of this report the adjudicating and appellate authorities have confirmed the demand without having any evidence to support their case. He also submitted that a charge of clandestine removal is required to be proved with positive evidence to that effect and cannot be sustained merely on unproved entry in a private record.
3. Shri T.A. Arunachalam, learned Departmental Representative submits that the Inward Outward Register of the appellants, being a document kept by them, should be presumed to be correct and authentic including every entry therein. He relied on the Kerala High Court judgment in the case of Kollatra Abbeb Haji v. Government of India and Others reported in 1984 (15) E.L.T. 129 (Kerala). He also submitted that it is clear from the show cause notice that the appellants were obstructing verification and investigation in the matter. He further submitted that the appellants have not offered any satisfactory explanation about the consignment cleared on 10-2-1993. inasmuch as they have not correlated this consignment to any duty paid document. He also explained that letter dated 18-5-1993 of the Superintendent was with regard to statutory records kept by the assessees and, therefore, the report cannot be relied upon to content that any particular investigation has taken place at the hands of the Superintendent into the alleged non-duty paid clearance on 10-2-1993.
4. I have perused the records of the case and have considered the rival submissions. I find that apart from the entry in the Inward Outward Register there is no positive evidence to support the allegation of clandestine removal. Appellant's unit is located in Uttar Pradesh while the clearances according to the entries of 11-2-1993 as well as the entry of 10-2-1993 in Inward Outward/Register are both to Calcutta on the same truck. It is physically impossible for a truck to have undertaken two trips to Calcutta within a short period of a day from the appellants factory. No verifications have been made with the truck owner, the sales tax check post or any authorities to show whether two clearances took place on 10-2-1993 and 11-2-1993 as alleged by the Revenue. Clandestine removal is required to be established with sufficient positive evidence. The same has not taken place in the instant case. Accordingly, the appeal is allowed and the impugned order is set aside with consequential relief to the appellants.